EUROPEAN COMMISSION 
Brussels, 20.12.2011 
SEC(2011) 1588 final 
  
COMMISSION STAFF WORKING DOCUMENT 
IMPACT ASSESSMENT OF AN INITIATIVE ON CONCESSIONS 
Accompanying the document 
PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF 
THE COUNCIL 
on the award of concession contracts 
{COM(2011) 897 final} 
{SEC(2011) 1589 final}  
 
 ITABLE  OF CONTENTS 
 
1. Introduction .................................................................................................................. .1  
1.1. Scene Setter .................................................................................................................. .. 1 
1.2. Legal Background .......................................................................................................... 2 
1.3. Context of the initiative .................................................................................................. 3 
 
2. Procedure ..................................................................................................................... .. 5 
2.1. Studies ....................................................................................................................... ..... 6 
2.2. Consultation with Member States an d discussions with stakeholders ........................... 6 
2.3. Public consultations ....................................................................................................... 6 
2.4. Steering group ................................................................................................................. 7 
 
3. The economic and social importance of conc essions with respect to the internal 
market ............................................................................................................................... .......... 7  
 
4. Problem definition ....................................................................................................... 10 
4.1. Lack of legal certainty genera tes economic inefficiencies ........................................... 11 
4.1.1.  Lack of clear definition of concessions........................................................ 11 
4.1.2.  No clear obligations with respect to the award of concessions.................... 12 
4.1.3.  Consequences of lack of le gal certainty on concessions.............................. 13 
4.2. Entry barriers  ............................................................................................................... 15 
4.2.1.  Barriers stemming from the divergen ce of national legal regimes ............. 15 
4.2.2.  Barriers stemming from unlawful practices ................................................. 16 
4.2.3.  Consequences of entry barriers .................................................................... 17 
4.3. Insufficient legal prot ection of tenderers ...................................................................... 18 
 
5. Base line scenario ........................................................................................................ 19 
 6. Subsidiarity................................................................................................................... 20 
 
7. Objectives..................................................................................................................... . 21 
7.1. General objectives......................................................................................................... 21 
7.2. 
Specific objectives ........................................................................................................ 21 
7.3. Operational objectives................................................................................................... 21 
 
8. Policy options ............................................................................................................... 2 2 
8.1. No policy change (Option 1)  ........................................................................................ 22 
8.2. Focused infringement policy (Option 2)....................................................................... 22 
8.3. Soft law (Option 3) ....................................................................................................... 23 
8.4. Legislation — content of the options ........................................................................... 24 
8.5. Legal instrument ........................................................................................................... 24 
 
9. Impact analysis of the legislative options ................................................................... 25 
9.1. Scope of legislation ............................................................................................... 25 
9.1.1. Utilities sector .............................................................................................. 25 9.1.2. Priority and non-priority services................................................................. 25 
 
 II9.1.3. Public passenger transport services by rail and road as covered by Regulation  
  1370/2007 .................................................................................................... 26 9.1.4. Air transport services as covered by Regulation 1008/2008........................ 26 
9.1.5. Concessions awarded to entities enjo ying of exclusive rights granted in 
compliance with EU law...............................................................................26 
9.1.6. Concessions of less important value ............................................................ 26 9.1.7. Scope of application in time ........................................................................ 27 9.2. Option 4: Legislation — Basic rules .................................................................... 28 9.2.1. Option 4: Legislation — Basi c rules — Economic Impact.......................... 33 
9.2.2. Option 4: Legislation — Basi c rules — Social Impact................................ 33 
9.2.3. Option 4: Legislation — Basic rules — Environmental Impact .................. 34 
9.3. Option 5: Legislation — Detailed rules ................................................................ 35 9.3.1. Option 5: Legislation — Detailed rules — Economic Impact ..................... 37 9.3.2.  Option 5: Legislation — Deta iled rules — Social Impact ........................... 38 
9.3.3. Option 5: Legislation — Detailed  rules — Environmental Impact ............. 38 
9.4. Option 6: Legislation — Mixed rules ................................................................... 38 9.4.1. Option 6: Legislation — Mixed rules — Economic, Social and  
  Environmental impact .................................................................................. 41 
 
10. 
 Comparing the options................................................................................................ 42 
 11. Monitoring and evaluation .......................................................................................... 42 
 
 Annex I — Outcome of the consultations ................................................................................. 44  Annex II — Overview of the MS legislation  ........................................................................... 76  Annex III — List of consultati ons with stakeholders ............................................................... 92 
 Annex IV — Summary of the report «Public servi ces in the European Union and in the 27 Member 
States» (potential for co ncession contracts)............................................................................... 94 
   
 
 1 
IMPACT ASSESSMENT OF AN INIT IATIVE ON CONCESSIONS  
Lead DG: MARKT 
 Agenda planning: Commission Work Programme, IV Q 2011  1. I
NTRODUCTION  
 1.1. S
CENE SETTER  
 
The legislative initiative on concessions is to be s een as one of the measures that can help ensure a 
more efficient allocation of public money by creati ng the conditions for a competitive award of this 
type of contract.  
Today, in the particular context of severe budgetary constraints a nd economic difficulties in many 
EU Member States, the efficient a llocation of public funds is a point  of special concern, leading to 
increased pressure for new ways to obtain the best possible procur ement results for the available 
resources.   
When public authorities need to mobilise priv ate capital and know-how to supplement scarce 
public resources, concessions are a particularly at tractive way of carrying out projects of public 
interest. Concession holders ma y, for instance, build and manage motorways, provide airport 
services and operate water distri bution networks. In undertaking thes e tasks, they usually need to 
make substantial up-front investments which are then  recouped by collecting fees from the users of 
the infrastructure or service.  
The use of concessions may allow for new invest ments in public infrastructures and services 
without increasing public debt figu res in specific circumstances ac cording to Eurostat guidelines. 
Hence, in the current situation th e initiative on concessions  is of immediate re levance as a support 
to economic recovery. 
Concession contracts are different from public c ontracts, which are traditionally used by public 
authorities to procure supplies, works or services . In the case of public contracts, an economic 
operator is awarded a fixed payment for completing the required work or service. Concessions, on 
the other hand, are contractual ar rangements between a public authority and an economic operator 
(the concession holder) where the latter receives  substantial remuneratio n through being permitted 
to exploit the work or service.  
Hence, concessions involving private partners are a particular form of P ublic Private Partnership 
(PPP).1 Although PPPs have never been defined in EU  Public Procurement legislation, they are 
usually understood to be cooperation between a pub lic authority and a private partner, where the 
latter ‘(...) bears risks that are traditionally born e by the public sector and often contributes to 
                                                 
1 For the purpose of statistical treatment, concessions are defined as projects where most of the revenue is generated by third 
party users, whereas in PPPs  it is generated by public aut horities. However, this distinct ion does not coincide with the 
legal criterion to define concessions and ther efore it is not used in the present text.  
 
 
 2financing the project’2. Some PPPs are structured as public cont racts, but the majority of PPPs take 
the form of concessions.  
The award of public contracts and concessions is s ubject to EU rules. The same rules do not apply 
to different categories of con cessions and public contracts.  
Unlike public contracts, which ar e exhaustively regulated in s econdary legislation, and works 
concessions, which are partially covered by seconda ry rules, the award of service concessions is 
only subject to the general principles of the Treaty.   
This legal loophole results in ir regularities and economic ineffi ciencies, which are discussed 
further in the text, and has a negative impact on the achievement of the best value for public 
money.   
Thus, the initiative's objective is to create a st able legal framework for public authorities and 
economic operators, ensuring non-discrimination a nd fair access to service markets in Member 
States.  
1.2. LEGAL BACKGROUND  
 
The Treaty on the Functioning of the European  Union (TFEU), like its predecessors, does not 
contain any specific provisions govern ing the award of public contracts.3 It does, however, 
establish four fundamental freedoms and the en suing principles of equal treatment, non-
discrimination, transparency and proportionality which contracting author ities and c ontracting 
entities (hereinafter CAEs) must observe when awarding public contract s and concessions. These 
principles have been interpreted and developed by the Court of Justice of the European Union (‘the 
Court’).   
In order to apply the Treaty principles more efficiently, secondary le gislation was developed 
containing specific rules on awar d procedures. Today, two main  directives regulate public 
procurement in the EU: Directive 2004/18/EC (‘C lassic Directive’) a nd Directive 2004/17/EC 
(‘Utilities Directive’).4 
The European legislature decided to differentiate between public contracts , conceived as the 
procurement of works, goods or services against payment, and concession contracts , where works 
or services are provided to CAEs or to users in consideration for the right to exploit a facility.5   
With regard to the latter, it should be pointed out that the award of works concessions  under the 
Classic Directive6 is currently subject to a limited number of provisions only. In particular, it is 
                                                 
2 See Commission interpretative communication on the application of Community law on Public Procurement 
and Concessions to ins titutionalised PPP (IPPP) (O J 91, 12.4.2008, p. 1). 
3 The only reference to public procurement is to be found in Article 199 (4) of the TFUE in relation to 
investments financed by the EU in the overseas countries and territories. 
4 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, 
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  (OJ L 134, 30.4.2004). 
5 Definitions of works and services concessions in Article 1(3) and (4) of Directive 2004/18/EC and 
Article 1(3)(a) and (b) of Directive 2004/17/EC. The first provisions on works concessions date back to the adoption of Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC (see OJ L 210, 21.7.1989). 
6 Articles 56 to 65 of Directive 2004/18/EC. 
 
 3compulsory to publish a concession notice in th e EU Official Journal (EUOJ) and to respect a 
minimal period for the submission of applications. Moreover, there are rules on the obligations of 
concession holders. Bidders also enjoy judi cial guarantees provi ded by Directive 2007/66 
(‘Remedies Directive’).7 Their award is supplemented by the general Treaty principles. On the 
other hand, the award of works concessions under the Utilities Directive is only subject to the 
general principles of the TFEU.   
Similarly, service concessions  are currently subject only to the general principles of the TFEU.  
In practice, the distinction between works conce ssions and service concessions may prove to be 
difficult to determine. The problems identified be low do not concern all categories of works and 
service concessions to the same extent. As al ready explained, the exis ting provisions already 
regulate some aspects of the award of a major part of works concessi ons. As a result, the solutions 
discussed in the report would affect different categories of concessions to a different degree. 
Necessary clarifications in this regard will be pr ovided in the relevant sections of the Report.  
Table 1– Rules of the Public Procurement Directiv es applicable to public contracts and concessions 
 Publication 
in the  
OJEU Min. 
deadline for 
submission  Rules on 
additional 
services Rules  
on sub-
contracting Remedies Rules on 
selection 
criteria Provisions 
on  
tech. spec. Rules on 
award  
criteria Pub. of 
contract 
award  
notices Rules on 
choice of 
procedures 
 
Public 
contracts in 
‘classical’ 
sectors X X X   X X X X X X 
                     
Public 
contracts in 
‘utilities’ sector X X X   X X X X X X 
                     
Works 
concessions X X X X X           
 
Works 
concessions in 
the utilities 
sector 
 
Service 
concessions in 
both classical 
and utilities 
sectors 
 
 1.3. C
ONTEXT OF THE INITIATIVE  
 
The potential of a legi slative initiative on concession co ntracts for creati ng a supportive EU 
framework for PPPs was singled out in the Co mmission’s Communication on «Mobilising private 
                                                 
7 Directive 2007/66/EC, (OJ L 335, 20.12.2007)  
. 
 
 4and public investment for recovery  and long term structural chan ge: developing Public Private 
Partnerships».8  
The Europe 2020 strategy9 highlights the importance of PPPs for accelerating growth and boosting 
innovation. The Single Market Act10 announced the adoption of a legislative initiative on 
concessions in 2011 in order to promote PPPs and he lp deliver better value for money for users of 
services and for contracting authorities, whil e improving market access for EU undertakings by 
ensuring transparency, equal treatment and a level playing field acr oss the Single Market.11 
The following sections will demonstrate how th e lack of a complete EU legal framework 
applicable to concessions as a major part of PPPs hinders their development and undermines their 
benefits.   
The current initiative is not the first attempt to submit concessions to a more precise legal 
framework. In 1989 a number of provisions were adopted on the award of works concessions.12 
Following the failure to agree on procedures on th e award of service con cessions in the proposal 
for the public service contracts directive,13 in 1992, the Commission i ssued three subsequent 
Communications addressing th e subject of concessions.14  
The initiative is pursued in parallel to th e revision of Public Procurement Directives15. It will result 
in the adoption of a separate legal instrument, regulating the award of concesssions. The three 
proposals: the two resulting from the revision of the public procurement fr amework and the one on 
a directive on concessions, will be submitted for adoption by the Commision in December 2011. 
The main reasons for adoption of a set of rule s on concessions separate from the revised 
framework of Public Procuremnt are related to diffe rences of  the objectives pursued as well as to 
the very nature of the envisaged rules on concessions.  
In the first place it has to be underlined that while the general revision of public procurement 
rules aims at modernising and simplifying the cu rrent framework, the basis of which has been put 
in place roughly 40 years ago, the pu rpose of a new directive on concessions is to propose, for the 
first time, a comprehensive, clear and unambiguous set of provisions in the area which so far has been characterized by a continuous  uncertainty and erroneous inte rpretation, often leaving room 
for unlawful practices.   
                                                
 
8 COM(2009) 615 final of 19.11.2009. 
9 COM(2010) 2020 final of 3.3.2010, point 3.2. 
10 COM(2010) 608 final, of 27.10.2010, point 1.4, proposal nº 18. 
11 See footnote 10 above. 
12 See Directive 89/440/EEC, (OJ L 210, 21.7.1989). 
13 The Commission expressly proposed to include «public service concessions» within the scope of Directive 
92/50 (OJ 1991 C 250) covering public service contracts in general. However, the Council eliminated all 
references to public service concessi ons, in particular because of the di fferences between Member States as 
regards the delegation of the management of public services and modes of the delegation, which could create imbalances in the opening-up of the public concession contracts (see point 6 of document No 4444/92 ADD 1 of 
25 February 1992,  ‘Statement of reasons of the Council and annexed to the common position of the same date).
 
14 These are: Commission interpretative communication on concessions under Community law (OJ C 121, 
29.4.2000). Communication on Public-Private Partnerships and Community Law on Public Procurement and 
Concessions of November 2005 COM(2005) 569, Commission’s Communication on «Mobilising private and 
public investment for recovery and long-term structural change: developing Public Private Partnerships» COM(2009) 615 final of 19.11.2009. 
15 COM(2010) 608 final, point 1.4, proposal nº 17. 
 
 5Secondly, concession contracts disp lay a number of distinct characte ristics as compared to public 
contracts. These are: the exposure of the cont ratctor to the economic risk of providing the 
services, long average duration, gr eater complexity  and important  contract value as well as a 
patchwork of national rules determining the status  of concessions in various Member States.  
Furthermore, the limited character of the proposed  rules allows for a joint framework covering 
concessions in both the classic and the utilities s ector, preserving the specif icities of the utilities 
when absolutely necessary. More developed rules on public  contracts and contra cts in the utilities 
sector would involve, by contrast ,  more differences between legi slation in both sectors, which 
would not allow for such a simplification. 
 
Last but not least, the Commissi on considers a legislative proposal in the field of concessions as 
one of the key measures that will  facilitate the setti ng up of PPPs, and as su ch considers it as a 
means of stimulating economic recovery in the context of the current economic downturn. PPPs are 
also important for accomplishing structural reforms16 and could play an increasing role in 
accompanying EU policies in the context of the next multiannual financial framework, as 
suggested by the EU Budget review.17  
 
2. PROCEDURE  
 
This Impact Assessment Report (IAR) has been prepared in accordance with the Commission’s 
principles on Better Regulation. The initiative is the result of an extensive dialogue and 
consultation with all major stakeholders, includi ng CAEs, economic operators  and social partners, 
as well as with the Member States. The assessmen t is also based on the fi ndings of three studies 
which have been carried out for the Commission.   
 The Report was consulted by the Impact Assessm ent Board (IAB) on 26 January and the Board 
issued its opinion on 28 January. Subsequently, the Board issu ed its second opini on, on the revised 
text of the Report on 21
st March 2011.  Following the recommenda tions of the Board, the text of 
the Report has been further supplemented in the fo llowing sections: stressi ng the importance of the 
initiative for efficient spending of public resour ces (Introduction, Section 4); scope of the initiative 
and relation to the revi sion of Public Procurement directives  (Sections 1.3 and 9.1); additional 
evidence on the magnitude of the problem, conse quences of identified distortions  (Section3, 4 – 
4.1.3, 4.2.2, Annex IV); better justifica tion of the choice of the ‘mixed rules’ option (Section 9.4); 
choice of the legal instrument (Section 6, 8.5); ju stification of the exclusion of non-priority 
services and the choice of threshold (Section 9.1.2, 9.1.6); scope of various options (Sections 9.2, 
9.3, 9.4); social and economic im pact (Section 9.2.1, 9.2.2); implemen tation aspects (Sections 9.2, 
9.3, 9.4 in fine); and different treatment of pub lic contracts and concessions (sections 4.2.2, 9.1.6 
and 9.4). Across the whole text references to specifi c cases in support of the existence and scale of 
the problem have been added.      
                                                
 
16 In view of the present reduced capacity of national administrations to finance the necessary investments in 
infrastructures, in particular to meet  strict EU envir onmental standards. 
17 COM(2010) 700 final of 19.10.2010. 
 
 62.1. STUDIES  
 
Price Waterhouse Coopers — The 2007 PwC report on PPPs aimed inter alia  at assessing the 
extent, range and type of appro ach adopted to partnerships and concessions on the market, and 
described the impacts which might be expected from the introduction of a new EU legislative 
initiative.18  
 
Centre for Strategy & Evaluation Services  — The 2009 CSES report sought to determine the 
sector spread of service concessions in eight Memb ers States and to identify any sectoral issues to 
be taken into consideration in an assessment of the potential impact of the EU secondary rules.19 
 College of Europe  — The 2010 College of Europe study aimed at identifying how public 
authorities in seven Member Stat es inform economic operators of their intention to award service 
concessions.
20 
  
2.2. C
ONSULTATION WITH MEMBER STATES AND DISCUSSIONS WITH STAKEHOLDERS  
 
As well as consulting Member States in 2007 a nd 2010 within the framework of the Advisory 
Committee on Public Procurement on different as pects of an initiative on concessions, the 
Commission departments held bilateral meetings with Member States.21 They also conducted about 
60 bilateral meetings with relevant stak eholders active on the concessions market.22  
 
2.3. PUBLIC CONSULTATIONS  
 
On 30 April 2004 the Commission issued a Green Paper on PPPs and Community Law on Public 
Contracts and Concessions.23 On 3 May 2005 the Commission de partments published a working 
report on the public consultation on the Green  Paper on PPPs and Community law on public 
contracts and concessions,24 which was followed by the Comm ission’s Communication on PPPs of 
November 2005.  
Between 12 May and 9 July 2010 a public online consultation was held through an Interactive 
Policy Making site (‘online consultation’). It wa s addressed to the gene ral public and aimed at 
collecting views and experiences regarding concessions and learni ng about how the current rules 
work. 
Between 5 August and 30 September 2010 the Co mmission departments ran a targeted public 
consultation (‘targeted consultation’). This consu ltation, which was of a more  technical nature, was 
addressed to the business communit y, social partners and CAEs. Its aims were to learn from these 
groups’ experience on concessions, h ear their views on the working of the current rules and collect 
suggestions for future improvements.25 
                                                 
18 See http://ec.europa.eu/internal_market/publicprocurement/index_en.htm. 
19 See footnote 18 above. 
20 See footnote 18 above. 
21 With the exceptions of BE, LV, MT, and SK where, for different reasons, the Commission’s departments' 
invitations did not have a follow-up. 
22 List of meetings in Annex III. 
23 COM(2004) 327 final of 30.4.2004. 
24 SEC(2005) 629 of 3.5.2005. 
25 See Annex I A on the outcome of the consultations. 
 
 7The results of the abovementione d consultations highlig hted the fact that stakeholders hold 
contrasting views when it comes to  awarding concessions. They have  also confirmed that (i) the 
uncertainty of the present rules and access to the market cause problems and (ii) a targeted EU 
intervention is desirable.  
2.4. STEERING GROUP  
 
The Steering Group was set up by representatives of the following European Commission 
departments: SG, LS, DG ECFIN, DG EMPL, DG REGIO, DG ENTR, DG COMP, DG MOVE, 
EUROSTAT.26 The group met three times: on 25 May 2010, 30 November 2010 and 
3 December 2010. DG MARKT also conducted bilate ral meetings with the SG, the LS, DG 
MOVE, DG REGIO, DG EMPL and DG COMP. Consu ltations with DG EMPL were particularly 
far-ranging and included very close cooperation, in particular on preparing the consultation which 
was addressed to the social part ners. The contributions of the members of the Steering Group have 
been taken into account in the content and shape of this IAR. 
 
3. THE ECONOMIC AND SOCIAL IMPORTANCE OF CONCESSIONS WITH RESPECT TO THE 
INTERNAL MARKET  
 
Concession contracts underpin an  important share of economic activity in the EU. They are 
particularly significant in econom ic sectors that are of great importance to both citizens and 
economic operators, such as network industrie s and services of general economic interest.27 They 
are important vehicles in the l ong-term structural development of  infrastructures and strategic 
services, as they help to harne ss private sector expert ise, achieve efficiency  and deliver innovation. 
Moreover, their role is also likely to become mo re prominent in years to come in the face of 
increasing constraints on public finances. Indee d, by transferring the main  operating risks to a 
private partner and alleviating the public authorities  of this burden, concessions make it possible, in 
certain cases, to carry out much needed public wo rks and services while keeping the corresponding 
commitments out of the government balance sheet.28 29 There is further potential for increased 
take-up of concessions in many projects supported by the European  funds, where the use of PPPs 
in co-funded projects is currently low.30 
A decision to resort to a con cession should be assessed on a case- by-case basis and its costs and 
benefits should always carefully  and comprehensively be compar ed with those of alternative 
solutions.   
                                                 
26 DG SANCO did not attend the meeting of the Steering Group since it considered that it was not concerned by 
the initiative. 
27 In the Commission’s 2006 report on the evaluation of the performance of Network industries providing 
services of general economic interest, networ k industries were estimated to account for 7  % of the EU 15 total 
value added. In the new Member States this share wa s calculated to be much higher, ranging from 9.8  % in 
Hungary to 14.3  % in the Slovak Republic. In 2005, slightly more than 10.5 million people were employed in 
EU25 network industries corresponding to 5.4  % of the total workfor ce. A recent study on pub lic services in the 
EU estimates the number of persons employed by Services of General Interest to be over 64 million. The number 
of enterprises providing SGI is estimated to be more than 500.000. SGI providers of electricity, gas, water, 
transport, post and telecommunications and research contribute to 6.4  % of the total investment in the EU which, 
for the year 2006 was over EUR 150. (see «Public services  in the European Union and in the 27 Member States» 
a study commissioned in the framework of the ‘Mapping of the Public services’ project managed by CEEP). 
28 See rules on statistical accounting of Public Private Partnerships, Eurostat News Release 18/2004: Treatment 
of public-private partnerships and ESA95 Manual on government deficit and debt 2010 Edition: Chapters on 
public infrastructure financed and exploited by corporations and on public-porivare partnerships.   
29 PWC study, p. 56. 
30 This is partly due to the perception that combining se ts of EU and different natio nal rules and practices and 
timetables in one project may be complex.  See Commission’s Communication, footnote 8, para. 3.3. 
 
 8The fact that Member States use different labe lling for concessions and the current lack of 
transparency on their award makes systematic and precise measuring of their economic and social 
importance difficult. Comparable data across th e Internal Market are generally lacking, or  
inconsistent, particularly in Member States where concessions are not sufficiently regulated. 
However, there is some relevant data with regard to PPPs and concessions in several Member States where concessions are subjec t to specific rules. According to the PwC study, the value of all 
PPPs between 2000 and 2006 in the sect ors and Member States analysed
31 was estimated32 to be 
worth €  230 billion. Based on a thorough review of cont ract samples, PwC concluded that over 
60 % of all PPP contracts qualified as concessions.33 This would bring the total value of 
concessions in those Member Stat es for the relevant period to €  138 billion. Such percentage can be 
extrapolated to subsequent references to PPPs  in the present text. The table below provides 
examples of the importance of concessions in differe nt sectors, on the basis of statistics on either 
concessions or da ta concerning PPPs. 
 
Table 2 — Value of concessions in selected Member States (as GDP percentage) 
Member  
State Information about concessions ∗ 
FR There is an estimated stock of 10.000 concession-type contracts worth around €  80 billion34 (equivalent to 2.1  % of 
GDP). The most relevant sectors are water and sanitation, waste management, gas and electricity infrastructure 
management, motorways, sport facilities (60-70  % of concession-type contracts) and heating networks. 
 
IT There were 530 invitations to tender for co ncessions in 2009 with a total value of €  8.4 billion (out of which €  536 
million corresponded to service concessions). The overall va lue of concessions published since 2006 and up to 2009 
amounts to €  30.4 billion (equivalent to 2.1  % of GDP). Data for 2009 show that  use of concessions was already 
picking up after a marked slowdown in 2007-2008.35 
UK More than 700 PPP deals were signed up to Marc h 2006 with a total capital value of over €  60 billion (equivalent to 
3 % of GDP). Based on the PwC study, most of the UK contracts would qua lify as concessions36, even if this has not 
been confirmed by the CSES study37 In the UK, concessions are to be found in public transport, roads and bridges, 
waste management, waste water manageme nt, marine services and care homes. 
DE PPP projects were estimated in 2007 at €  3 billion of investment  (equivalent to 0.1  % of GDP). Investment at the 
Federal/Land level averaged €  70 million per project, while at the municipal level the average investment was around 
€ 16 million.38 The sectors most concerned are water and energy  supply, schools, sport and leisure facilities. 
ES Since 2006, 6169 concessions have been adve rtised in the nationa l Official Journal.39 Concessions are most prevalent 
in the road sector, where the total capital value was estimated at € 8 billion in 2005 (equivalent to 0.9  % of GDP). 
Concessions in water distribution and waste-water management as well as in  waste have been developing quite 
rapidly.40  
PL Limited concession-based ac tivity, mostly focused on the motorway sector. 41 
CZ PPP projects with a total capital value of €  1.1 billion42 in 2005 (equivalent to 1.1  % of GDP). This value refers to 
projects in health, transport, and public  buildings sectors. There are several co ncession contracts in the waste/drinking 
water and waste sectors. 
                                                 
31 Sectors: transport, (roads, bridges and tunnels/mass rapi d transit), water, waste, health, education and public 
sector accommodation; Member States: CZ, DE, ES, FR, IT, PL, SE, UK, see PwC study, figure 3.1, p. 54. 
32 The Dealogic Projectware database us ed in the estimation is a database of project finance transactions. The 
concessions and PFI/PPP projects includ ed are normally those involving an element of debt finance and 
therefore it is unlikely to capture all concession contracts, see footnote 29. 
33 See PwC study  Tables 3.15 & 3.16, p. 104. 
34 Data provided by the French authorities. 
35 Data sent to the Commission services by the Italian authorities. 
36 See PwC study, pp. 54 and 103. 
37 See CSES study, p. 52. 
38 See PwC study, p. 65. 
39 See CSES study, p. 27. 
40 See CSES study, p. ??  
41 See PwC study, p. 74. 
42 See PwC study, p. 57. 
 
 9Member  
State Information about concessions ∗ 
EL In 2009 a total of 52 PPP projects worth €  5.7 billion were at different stages of the approval process (equivalent to 
2.5 % of GDP).43 They concerned the construction and maintena nce of hospitals, government buildings, schools, 
prisons and universities. 
PT In 2010 there were 115 concession contracts representing an investment value of €  32.5 billion (equivalent to 19.87  % 
of GDP). 44 Sectors covered: water distribution and waste water, waste, energy and heating services, transport, port 
and airport services, health services, ro ad and motorway operation among others. 
 
∗ All GDP data in this table (with the except ion of Portugal) originate from Eurostat. 
 
With reference to the sectoral coverage of concessions, studies done as well as the consultations 
carried out show that concessions are mostly used in water distribution and treatment, road and rail 
transport, ports and airports services, motorway  maintenance and management, waste management, 
energy or heating services, le isure facilities and car parks.45 Concessions in these sectors imply 
significant amounts of capital investment.  
 However, on the basis of the studies and consultations , it is also possible to identify, sectors, where 
concessions seem to be less present. This is the ca se in health, social and education services, which 
are qualified in the Public Procurement Directives as ‘non-priority’ services. 
 
Table 3 — Value of concessions in  selected sectors of activity  
Sector Economic & social importan ce  Situation regarding concessions 
Water provision ,
waste water &
sewage Eurostat data on ‘Colle ction, purification and 
distribution of water’ (NACE = E41): 
• EU turnover (2007): €  50 billion 
• No of enterprises in the EU (2007):9 
million 
• No of persons employed in the EU 
(2007):3.7 million EU: 33  % of Europeans served by economic 
operators (according to In ternational Federation) 
FR: 72  % of the population served through service 
concessions; 2.536 concessions underway in 2007 
with 700 concessions re-opened every year.  
ES: 36  % of the population served under a 
concession contract, 16  % served through IPPPs, 
some under concession contracts. 
DE: 6  % of the population served by private 
companies, 39  % by IPPPs. 
IT: growing 20  % of the population served by 
private or mixed entities of Private Water Operators 
(Aquafed) 
Waste management Eurostat data  on ‘Recycling’ (NACE = DN37): 
• EU turnover (2007): €  50.7 billion 
• No of enterprises in the EU (2007): 17.4 
million 
• No of persons employed in the EU 
(2007):1.6 million. 
Only the members of the industrial association 
FEAD, covering 19 Member States, accounting for a 
60 % share in the household waste market and 
handling more than 75  % of industrial and 
commercial waste in Eur ope, can boast an annual 
turnover of €  54 billion.46 EU: 50  % of waste treatment is operated on the 
basis of a concession47  
FR: 80-90  % of contracts underway are 
concessions. 
Motorways & roads 360  000 people employed, with a turnover of 
€ 66 billion.48 EU (notably FR, IT, PT ): extensive presence of 
concessions  
                                                 
43 CSES study, p. 41. 
44 Source: Direcção Geral do Tesouro e Finanças, Boletim Trimestral nº 2/2010 (30.06.2010) referred to by the 
Portuguese authorities in their response to the CAEs’consultation. 
45 For the full list of sectors concer ned, see CSES report, pp. 31-34. 
46 See footnote 41 above, p. 77. 
47 See footnote 41 above, p. 80. 
48 See footnote 41 above p. 83. 
 
 10Sector Economic & social importan ce  Situation regarding concessions 
Ports & airports There are currently over 1000 seaports49 in Europe 
handling 3.5 billion tonnes of cargo a year and 350 
million passengers and employing 350.000 people in 
the ports themselves and in directly related 
services.50 In airports concessions some of the main 
companies active in this market, (Swissport, Menzies 
and Aviapartner) employ a total of 50.000 
employees.51 EU: In the airport sector, concessions in the 
handling of passengers, baggage and freight, in car 
parking and catering 
Energy & heating Eurostat data on ‘Electricity, gas, steam and hot water 
supply’ (NACE = E40): 
• EU turnover (2007): €  940 billion 
• No of enterprises in the EU (2007): 26.8 
million No of persons employed in the EU (2007): 12 million FR: 54
 % of contracts are concessions52 
 
According to the European Investment Bank, in all more than 1300 PPP c ontracts were signed in 
the EU from 1990 to 2009, representing a capit al value of more than EUR 250 billion.53 
 The EIB itself, which is Europe’s foremost funder  of PPP projects, has a por tfolio of 120 projects 
representing an investment of around EUR 25 bill ion. Funding of new projec ts was in excess of 
EUR 3.5 billion in 2008 and in 2009 was worth EUR 2 billion despite difficult economic conditions.
54 Bearing in mind the share of concessions  in PPP set-ups, the above numbers confirm 
their current and potential economic importance.   Additional information on the use of concessions by Member States is provided in Annex IV with 
reference to the modes of delivery of public services.
55 
 In the light of the data quoted above, it can be concluded that conc essions are important not only in 
terms of their value, but also because they are used in vital sectors of the economy. Many of these 
sectors include services that direc tly affect businesses and the quality  of life of users across the EU. 
However, the take up of concessions is very  uneven across Member States. The information 
gathered shows that there is potential for furt her development of this  type of contract.  
 
4. 
PROBLEM DEFINITION  
 
One of the impacts of having adequa te rules for public purchases (thus  also rules for the award of 
concessions) is a more efficient allocation of public  resources.  
 According to OECD data (referred to in Secti on 4.2.1), the estimated cost savings generated by the 
use of competitive tendering for the delive ry of public services  can range from 10
 % to 30  % 
(resulting from the externalisation of certain pub lic tasks and the improvement of previously 
applied procurement practices).  
                                                 
49 See Communication from the Commission on a European Ports Policy, COM(2007) 616 final of 18.10.2007, 
sections, 4.1, 4.3.  
50 See CSES study, p. 67. 
51 See footnote 46 above, p. 76.  
52 See footnote 46 above, p. 45. 
53 The EIB notes several difficulties in compiling a comprehe nsive database on PPPs in Europe, particularly the 
fact that data available on actual PPP investment is poor and incomplete . See EIB, «Economic and Financial 
Report 2010/04 — Public Private Pa rtnerships in Europe — Before and During recent financial crisis». 
54 See presentation made by the EIB to the EPEC — Priv ate sector Forum II, Europe 2020 — A view of the 
future, Brussels, 2 June 2010. 
55 Information provided in the report «Public services in the European Union and in the 27 Member States» 
study commissioned in the framework of the ‘Mapping of the Public services’ project managed by CEEP. 
 
 11 
 In one Member State the introduction of the oblig ation to follow a competitive procedure and to 
publish a notice at the national level resulted in annual savings estimated to be up to 9
 %, as well as 
in significant technological improvements (see Section 9.2.1 for further analysis).  
 These figures are an indication of the signifi cant impact of a clear and appropriate legal 
environment on the efficiency of public spen ding. They also underlin e the importance of a 
framework which stimulates competition and guar antees optimal organisational arrangements for 
the carrying out of public tasks. Finally, they po int to the potential for further improvement in 
public spending — or rather, invers ely, the scale of today’s ineffici encies — in those sectors and 
Member States where the competitive and transparen t award of service concessions is not the rule. 
 At the moment, the absence of cl ear rules at EU level and in ma ny cases at national level governing 
the award of concession contract s gives rise to obstacles to th e free provision of services and 
causes distortions in the functi oning of the Internal Market.
56 As a result, EU citizens do not 
benefit from quality services at best prices, ec onomic operators (in particular SMEs) are being 
deprived of their rights within the Intern al Market and miss out on important business 
opportunities, and CAEs may fail to manage pub lic resources on a sound financial basis.  
 These shortcomings are caused not only by legal uncertainty  and entry barriers  but also by a 
lack of appropriate judicial guarantees  for bidders. 
 The following considerations apply primarily to  the award of service concessions and works 
concessions in the utilities field. 
 
4.1. L
ACK OF LEGAL CERTAINTY GENERATES ECONOMIC INEFFICIENCIES  
 
Legal certainty is essential to any economic activity and is particularly important in the context of 
long-term, high-value contracts such  as most concessions. However,  the grant of concessions is 
currently impaired, on the one hand by the lack of a clear and ad equate definition of these contracts 
in EU law and, on the other hand by the imprecise character of the obligations arising from the 
Treaty principles. These problems are often not resolved (and some times even exacerbated) by 
national regimes for awarding concessions. 
4.1.1.  Lack of clear definition of concessions  
 
Uncertainty with regard to the definition of con cession appears already at the stage of qualification 
of a given arrangement as falling within the scop e of the rules on public pur chases. The distinction 
between public contracts and concessions on the one hand and other types of agreements or unilateral acts (such as licenses and authorisat ion schemes) on the other hand, is unclear and 
stakeholders (e.g. in the ports sect or) reported that it is often di fficult to know which legal regime 
applies to a given scheme. Furthermore, the lack of  clarity stretches to certain activities carried out 
in the form of public-public cooperation.  
                                                
 
56 In its report on «New developments in public procurement» the European Parliament considered that «any 
proposal for a legal act dealing with service concessions would only be justified with a view to remedying distortions in the functioning of the internal market.» see recommendation 14, in European Parliament A7-
0000/2010. 
 
 12The current definition makes it difficult to disti nguish between concessions and public contracts. 
Out of the twenty five Court rulings on concessions since the Telaustria  landmark judgment57 in 
2000,58 as many as thirteen concerned the clarificati on of the notion of concession. The majority of 
these very numerous cases stemmed from reques ts by national courts for a preliminary review, 
reflecting their recurrent uncertainties or, sometimes, their lack  of understanding of  the concept of 
concessions. 
The Commission provided some clarity in  this respect in its interpretative  Communication,59, 
explaining that the risk inherent in the exploitation of the work or service which the concessionaire 
has to bear is the essential feat ure of a concession. Although the ca se law of the C ourt shed some 
more light on this definition, fundamental elements, such as the level and types of risk, still remain 
unclear.60  
There is also some uncertainty regarding the di stinction between works concessions and service 
concessions.61 Indeed, since most works concessions also involve, to a certain extent, the provision 
of services, and as it is not always easy to ascer tain what the main purpose of the contract is, 
certain works concessions might be awarded as  service concessions, thus unduly avoiding the 
application of the secondary rules.  
Moreover, Member States' definitions of concession do not remove the aforementioned uncertainty 
at EU level. Some of them are as unclear as the current definition in the Directive. Moreover, it is 
unclear whether those national definitions which provide additional clarification do in fact comply 
with EU law.62  
4.1.2.  No clear obligations with respect  to the award of concessions 
 
The legal uncertainty regarding the definition of concessions is compounded by doubts regarding 
the content and application of the obligations of  transparency and non-disc rimination arising from 
the Treaty which guide the award of concessions . This problem affects all types of concession 
when it comes to the rules regulating the award.   
Although the Court confirmed in Telaustria that CAEs which award concessions are bound to 
comply with the fundamental rules of the Treaty, it did not sufficien tly explain the content of those 
                                                 
57 Case C-324/98, Telaustria [2000] ECR I-10745, where the Court stated that the contracting authorities need to 
comply with the Treaty principles of  equal treatment and transparency wh en awarding concession contracts. 
58 Case C-324/98, Telaustria [2000] ECR I-10745, where the Court stated that the contracting authorities need to 
comply with the Treaty principles of  equal treatment and transparency wh en awarding concession contracts. 
59 Commission interpretative communication on concessions under Community law (OJ C 121, 29.4.2000),  
pp. 2–13; point 2.1.1. 
60 This case law is still not sufficiently clear, in particular regarding the level of operating risk to be transferred to 
the economic operator so that a contract can qualif y as a concession (it seems that case C-437/07, COM vs. Italy  
[2008] I-00153 and case C-300/07, Oymanns [2009], are difficult to interpret along with case C-206/08 
Eurawasser on this particular issue). The uncertainty is increased by lingering doubts on the categories of risk 
that can be transferred to the concessionaire. While de mand risk for services seems to be widely accepted as 
relevant for the definition of a concession, there is uncer tainty as to what other categories of risk (availability, 
construction, legal and political, etc.) should also qualify. See judgment of the Court in case C-206/08 
Eurawasser [2009] ECR I-08377, point 79, where it ruled that «general risk resulting from amendments to the 
rules made in the course of performance of the contract cannot be taken into account». 
61 See Case C-331/92, Gestion Hotelera Internacional  [1994] ECR I-01329 and Case C-220/05, Jean Auroux 
[2007] ECR I-00385, paras. 36-37. 
62 Some Member States reproduce in their national laws the definition of concession set out in the Directive (BE, 
CY, DK, EE, EL, IE, IT, , , LU, , MT, NL, AT, FI, and SE),  while some others do not have any definition at all 
(DE and RO) or no definition of services concessions (BE).  
 
 13rules. Thus it is not easy to judge the adequacy of measures aimed at ensuring compliance with the 
principles of equal treatment, non-discrimination and transparency.63 
A problem of uncertainty as to the applicable rules has also been identified in case of a contract 
modification. Many stakeholders have identified this issue as an important one. Although the case-
law of the Court applicable to modifications of public contracts also applies to concessions, the 
level of certainty provided by these judg ments does not seem to be adequate.  
As concession award regimes in Member States are often unclear or – in case of services 
concession - non-existent,64 the burden of ensuring, in each specific case, the compliance of the 
procedures to be followed with th e Treaty principles falls on CAEs.65 In other words, CAEs are 
faced with a situation where they  apply national rules or ad-hoc  award procedures which do not 
necessarily meet EU Treaty standards.66 Similarly, economic operators remain uncertain about the 
legality of the procedures followed. 
4.1.3.  Consequences of lack of le gal certainty on concessions 
 
The current situation of uncertainty at several levels is causing significant economic inefficiencies  
and is prejudicial to CAEs, economic operato rs and users of the services provided.  
This was confirmed by many responde nts in the targeted consultations, who indi cated that neither 
the Court case law nor the existing guidance by the Commission provided su fficient legal certainty 
and that, in particular, the current definition of  concession should be improved by clarifying the 
notion of risk.67 Furthermore, as many as 27  % of the respondents to the public online consultation 
considered they were unable to distinguish be tween public contracts and concessions, whereas a 
further 45.9  % of respondents indicated that  they were aware of cases in which public contracts had 
been wrongly qualified as concessions.68 
For CAEs, the lack of legal certainty increase s the risks and costs of  cancellation or early 
termination of illegally awarded contracts69 70 and ultimately prevents them from using concessions 
where this type of contract might be a good solu tion. This may have the effect of  reducing the 
uptake of PPPs, resulting in missed opportunities for engaging private investments and know-how. 
This is particularly the case in new Member St ates, where uncertainty is compounded by a lack of 
                                                 
63 As the Commission recalled in its interpretative co mmunication on concessions under Community law (OJ C 
121, 29.4.2000), ‘this principle (of equal treatment) requires that all offers conform to the tender specifications to 
guarantee an objective comparison between offers and, on the other hand, this principle is violated, and 
transparency of the procedur e impaired, when an awarding entity takes account of changes to the initial offers of 
one tenderer who thereby obtains an advantage over his competitors’. 
64 This is the case in AT, BE, CY,  DE, EL, LU, MT, NL, SL and UK. 
65 As an example, German public procurement law does not contain provisions relating to the award of services 
concessions. This means that a number of service concessions, in particular at municipal level, are subject to unclear rules and legal uncertainty for both the public and the private sector partners See PwC study, page 66. 
66 For example in Portugal, it is possible to award directly concessions of public service  "for relevant reasons of 
public interest "  
67 See Annex I B, p.2, 5. 
68 In its contribution to the targeted consultation the Institut d’Experts Juridiques Internationaux argues that the 
overlapping of [EU] definitions [of public contracts and concessions] leads to risks of re-qualification of the contract awarded and that the present blurring [between these two notions] makes it tempting to circumvent 
the award procedures. 
69 The Court ruled in Case C-503/04, Bockhorn/Braunschweig , that a contract awarded in breach of EU law must 
be terminated (point 33). 
70 See «European PPP Report» (2009), page 19. 
 
 14experience. Indeed, CAEs may often prefer to rema in within the framework of the direct provision 
of services, rather than confer  these activities to a private ope rator on the basis of a concession. 
As regards economic inefficiencies caused by th e non-externalisation of certain tasks, as 
demonstrated by the OECD study, the estimated cost savings generated by the application of 
competitive tendering range from 10  % to 30  %. This gives an idea of the potential losses due to the 
inappropriate choice of organi sational arrangements for the provision of public services.71   
Moreover, economic operators may be less inclined to engage in projects which could turn out to 
have been tendered in violation of EU law. They may not be certain about the standards of 
transparency and equal treatment wh ich apply during the award procedure.72 In the long term, legal 
uncertainty and the resulting arbitrariness of CAEs may permanently discourage some economic 
operators from participating in  expensive tendering procedur es, which could provoke further 
efficiency losses.73 Legal risks also translate into additional costs (i.a. cost of credit74 75) and 
ultimately lead to less favourable conditions fo r CAEs and users. Operators may hesitate to 
participate when the procedure might be cancelled or  re-qualified as a public  contract at anytime. 
The negative consequences of unclear rules have been confirmed by economic operators 
responding to the targeted consulta tions, who declared that they we re ‘looking for their own advice 
and information’ with regard to  applicable rules, given the de ficiencies in the current legal 
framework.76 
Several SME respondents to the targeted cons ultation considered that unc lear rules at EU level 
increase the cost of legal advice, as well as the cost of searching fo r information on contract 
opportunities.77  
Legal uncertainty is also a factor in the sub-optim al use of EU funds in relation to concessions, 
contributing to a low uptake of conc essions in the new Member States.78 This has been confirmed 
                                                 
71 This means that wider use of concessions in the future has the potential to generate a higher rate of savings 
than the €  2 billion per year referred to in footnote 123. See also «Competition and Efficiency in Publicly Funded 
Services», by Jens Lunsdgaard, box 1, page 7, OECD Economics Department Working Paper, 2002. 
72 Indeed, stakeholders criticised excessive procedural discretion granted to CAEs when applying EU Treaty 
principles Annex I A, Annex I B http://ec.europa.eu/internal_market/con sultations/2010/concessions_en.htm . 
73 ‘Opening the public sector to SMEs in the Alpine Space. Coping with the difficulties encountered by SMEs 
when tendering abroad’ . Abstract of the SWOT analysis conducted by the ALPPS  (Alpine Public Procurement 
Services) — April 2005, available at http://www.alpps-online.com/ALPPS-Ang.pdf. 
74 This is the case, in particular, wher e the right to exploit the assets is th e sole or main guara ntee for the credits 
granted to the concession holder. In  a recent complaint received by the Commission departments, an excessively 
long award procedure due to existing legal uncertainties led to the conversion of the funding Bank’s guarantee 
on the assets into full ownership of the said assets. This question (cost of credit) is pa rticularly important in the 
context of the current economic crisis  and the ensuing acute liquidity shortage where many lending institutions 
have withdrawn from the PPP market, thus reducing competition among the remaining funders and increasing 
the cost of financing. 
75 When funding results from an EIB loan, non-compliance with EU law always leads to the rejection of the 
application or the full withdrawal of the Bank from the financial operation. These cases are not publicly reported, 
which means information is not publicly available. 
76 See Annex I B, http://ec.europa.eu/internal_market/cons ultations/2010/co ncessions_en.htm . 
77 See Annex I B, p.2,. 
78 In its «Guidelines for successful Pu blic-Private Partnerships (2003), the Commission (DG REGIO) defines as 
a key requirement on Commission financing the condition that «PPPs should not impact negatively on the 
operation of open markets nor on the clear  transparent rules of these markets.» see page 8. This means that legal 
uncertainty as to the applicable procurement rules on th e award of concessions clearly  affects the combination of 
EU funds with this type of arra ngement.  See also Commission’s Communication on «Mobilising private and 
public investment for recovery and long term structural change: developing Public Private Partnerships» 
 
 15during several bilateral meetings with national au thorities. As an exampl e, both the CSES study 
and the interviews with Member States confirmed th at the lack of legal certainty is a major factor 
determining the lack of development of concession s in the Czech Republic. This was also raised as 
a problem in Estonia.   
As an illustration of the above, the European Asso ciation of tolled motorways, bridges and tunnels 
concessionaires (ASECAP) considered that ma ny Member States do not yet have clear public 
sector rules; recent examples prove that the EC could act to prevent the uncertainty that 
undermines future initiatives. By favouring legal clarity, the EU can bring leverage/sponsorship to 
foster the political read iness of Member States to adopt a « PPP agenda» and explore more efficient 
ways of developing infrastructure.79  
4.2. ENTRY BARRIERS  
 
In many Member States concession markets remain predominantly national, with a limited 
presence of companies originating in other EU Member States.80 Entry barriers stem from 
divergent national legal regimes fo r the award of concessions, as well as from inappropriate or 
even unlawful practices of the national awarding authorities.  
 
4.2.1. Barriers stemming from the diverg ence of national legal regimes  
 
Divergent national legal frameworks on conce ssions deter non-domestic EU operators from 
entering national markets.   
Identified divergence of regimes concerns:  
- the definition of concession , whereby economic operators have to contend with a 
complex pattern of setups considered to be concessions in different Member States (e.g. 
administrative authorisations or licences)81 and contracts qualifying as concessions 
under EU law but not considered as  such by national legislators; 
- publication standards82 where, as a result of di fferent national frameworks, 
concessions of the same type and importance are being published at different levels in 
different Member States and even within the same Member State (e.g . in a local or trade 
newspaper, on the contracting en tity’s website, in the offici al journal or even in the 
OJEU); 83 84 85 
                                                                                                                                                         
COM(2009) 615 final of 19.11.2009, para. 3.3, opinion of DG REGIO within the context of the steering group 
and Report on Green Paper on PPPs, page 12. 
79 See ASECAP’s presentation to EPEC’s Private sector forum (2010), entitled «Lever aging EU grants: the case 
for PPPs». 
80 See, e.g., data reported in ‘A Practical Guide to PPP in Europe’, City and Financial Publishing, 2006, or in 
‘PPP in Europe 2006’, Linklaters, 2006. 
81 This is the case of a German notion of ‘Konzession’.  Licences or authorisations  are acts whereby a public 
authority authorises the exercise of an economic activity. While certain conditions for carrying out the activity usually need to be met by the licensee, or he might have been assigned certain public service obligations linked 
to the licensed activity, the authorisation does not principa lly aim at assigning a given public task to the licensee. 
82 The obligation to publish a contract notice in the OJEU applies only to works concessions covered by 
Directive 2004/18/EC. 
83 As already mentioned, a group of MS do not have any provisions on this subject (see footnote 64). 
84 Some Member States have provisions on this matter meeting high levels of transparency, where the 
notification is supposed to take place at national and, in some cases, EU level. This is the case of BG, CZ, DK, 
EE, ES, FR, LV, LT, PL, PT, RO, SK, FI and SE. 
 
 16- award procedures86 which are either regulated in detail87 or covered by very limited 
provisions.88 Substantial differences also exist between requirements and practices 
related to selection criteria, techni cal specifications and award criteria.89 
Where operators are faced with fragmented national frameworks, they have either to invest heavily 
in a learning process about national rules and pro cedures (with costs multiply ing in line with the 
number of Member States involved and often be ing prohibitive, in particular for SMEs) or to 
simply forego existing business opportunities. A ny investment opportunities available are therefore 
most likely to be exploited by a limited number of large EU companies which are currently the 
only ones with the financial resources to meet the extensive costs involved.90 Indeed, the existence 
of entry barriers was confirmed by a number of stakeholders during the targeted consultation: 
overall, as many as 41  % of the undertakings that provided a response to the relevant question 
confirmed the existence of entry barriers.91  
4.2.2.  Barriers stemming from unlawful practices  
 
Barriers stemming from a divergence of national  regimes are made worse by the often unlawful 
practices of CAEs due to the la ck of clarity of EU rules. 
One of the fundamental problems in this regard is the direct award of a c oncession contract with a 
cross-border interest. Direct awards originate fr om inadequate application of the principle of 
transparency, either by national lawmakers or by CAEs. This concerns, in particular, Member States that do not regulate the award of concessions but it also often concerns Member States 
where the award is governed by national rules.
92 Direct awards have particularly negative 
consequences for the proper functioning of the Inte rnal Market (as describe d in the next section). 
This applies to concession contracts which are often extended or renewed without any competition or transparency.  
As many as 37% of the respondents to the onlin e consultation declared they were aware of 
concessions being awarded without  any publication or transparenc y, in particular in the water 
distribution and waste water, wa ste treatment and energy sectors.  Similarly, an important number 
of undertakings questioned in the context of the targeted consultation of the business community 
(44
 % of those who answered the relevant question)  confirmed that they were aware of such 
awards, often quoting specific cases. With reference to the port sector, where concessions are 
widespread, the results from a survey conducted by the Institu te of Transport and Maritime 
                                                                                                                                                         
85 In some other Member States, national law provides for less ambitious publication requirements, e.g. in 
national newspapers instead of the national official journal (HU – for certain sectors), reasonable degree of 
publicity (AT).  
86 Again, in some Member States, no provisions of the sort exist (see footnote 64). 
87 This is the case in BG, CZ, ES, FR, LV, LT, HU, PL, PT, RO. 
88 IE and AT in particular. 
89 See Annex II. 
90 See PwC study, pp. 148-149. 
91 See Annex I B, p.2. 
92 According to the College of Europe study, in Italy «CAEs awarding public service concessions often do not 
publish contract notices at all, but invite those economic operators to the informal tender which are included in 
their «official list» of trustful service providers for the specific sector concerned or have been identified by the means of call for interest.» (final report for Italy, page 2). In its reply to the targeted consultation the Institut 
d’Experts Judiriques Internationaux considers that the practice of direct awards of concessions is provided for in 
most national legal systems. This stakeholder claims that such practice is rath er exceptional in France but 
nevertheless refers to a case of a direct award (based on an unsolicited offer) relating to the highway A86 in the 
Parisian region. 
 
 17Management and the University of Antwerp for the European Seaport Organisation (ESPO) show 
that 14  % of the respondents declared they had di rectly awarded contra cts for port services.93   
 Another unlawful practice concerns  the award of public contracts
94 in accordance with lenient rules 
applicable to concessions (undermining the e ffectiveness of Public Procurement rules).95 On other 
occasions concessions are granted as licences or authorisations (usually encompassing exclusive 
rights) in breach of the Treaty principles.96  
 
Finally, the consultations indicate that the lack of  clear rules also leads to the unlawful use of non-
objective selection a nd award criteria.97 This is the case when objectives unrelated to the subject 
mater of the contract are included  in the evaluation of the best offer. For instance, CAEs may want 
to take into account tenderers' so cial commitments not related to th e subject matter of the contract 
or relations of trust w ith one of the bidders. Non-objective and discrimi natory criteria undermine 
the fairness of the award. The same  can be said about di scretion in sett ing selection criteria, which 
may lead to some certain companies being di sadvantaged. This problem concerns SMEs in 
particular, which appear to be reduced largely to the role of sub-contractors.98  
 The problems outlined above primarily concern service concessions and works concessions in the 
Utilities sector, as the existing provisions on works concessions in the Classic Directive cover the 
issues of publication. By cont rast, the problems related to the misapplication of the Treaty 
principles at later stages of the award procedur e may also concern works concessions, although to a 
lesser extent. 
4.2.3.  Consequences of entry barriers  
 
Entry barriers hinder th e access of EU operators  to concession markets.  Economic operators are 
faced with different levels of transparency, resulting in an unlevel playing field and often 
translating into lost opportunities to  seek contracts. They generate costs related to legal advice and 
                                                
 
93 Among the sectors concerned, port services and waste treatment, but also water distribution, waste water & 
sewage, transport, energy, car parking and airport services s eemed to be particularly aff ected by this practice; for 
data quoted in this paragraph see Annex I A and B, p.2 . 
94 Case,  C-300/07  Oymanns , OJEU, C-180/4, 01.08.2009. 
95During the online Public consultation 45.9  % of the respondents indicated th at they were aware of public 
contracts being awarded as concessions, but a further 27  % admitted it was difficult for them to distinguish 
between a public contract and a concession (the latter percentage was even higher among economic operators, 
public administrations and professional associations, 28  % of which found it difficult to distinguish between the 
2 concepts). There are indications that this may be a common occurrence at municipal level, see CSES study, 
page 47. 
96 This means that a concession cont ract is wrongly qualified as a unilateral act and may be granted without a 
competitive procedure. Although the Court made it clear that the granting of a licence encompassing an 
exclusive right had to comply with the principles of  equal treatment and transparency (see Case C-203/08, 
Betfair ) it also acknowledged the ex istence of quite a wide derogation from these principles, excluding from this 
transparency obligation licences granted to (1) public oper ator subject to direct Stat e supervision or (2) private 
operators subject to strict control by the public authorities.» see case above, point 59. 
97 Under the Directive, qualification criteria need to rela te to technical, economic and financial capacity, whereas 
award criteria relate to price or the economically most advantageous tender. These re quirements do not concern 
either work or service concessions. Meanwhile in Fr ance, until recently the award was to a large extent 
dependent on the «intuitu personae» or the relation of personal trust between the contracting authority and the concessionaire. In Lithuania, the «effect of the tender on the social and economic development of the country or 
an appropriate region» may be used as an award criterion which may give rise, in view of its wide scope, to 
possible discrimination. 
98 Report on the Public Consultation on the Green Pa per on PPP and Community la w on public contracts and 
concessions , SEC(2005) 629 of 3.5.2005, p. 11. 
 
 18the need to acquire in-depth knowledge of speci fic local conditions. Divergent national rules on 
concession contracts, which create barriers to th e entry into the markets of Member States (in 
particular for SME’s) or dela y their entry, put incumbent national players at a significant 
advantage. The market stays fragmented and the rate  of cross-border provision of services remains 
limited.99  
The PwC Study confirms that a si gnificant proportion of the majo r public procurement projects 
seem to be de facto  excluded from the full benefit of th e Internal Market, as most of the 
participants and awardees are either national companies or locally represented large foreign 
enterprises.100 In the online consultation 32.4  % of the respondents also considered that diverging 
national legal provisions and practices governing the award of works c oncessions and service 
concessions constitute  an obstacle to the cross-border award of  this type of cont ract. These findings 
have been confirmed by several resp ondents to the targeted consultation.  
Unlike for some large companies with experience in concessions and present in several Member 
States, access to information on concession opport unities is particularly costly for SMEs, which 
lack the financial means to obtain the necessary information. As pointed out by one of the SMEs 
during the targeted consultation, ‘as awarding aut horities are not obliged to publish the contract 
notice on the OJEU, companies based in other Member States do enco unter difficulties in obtaining 
information on the service to be awarded’.101 Besides the prejudice to co mpetitors located in other 
Member States, CAEs and consumers also stand to lose since they do not get value for money.102 
As a result of direct awards many European ec onomic operators potentially interested in bidding 
for concession contracts are denied the opportunity  to do so and thus cannot enter the market. 
Direct awards lead to foreclosure of the mark et (based on discrimination of competitors) and 
generate considerable inefficien cies corresponding to the differen ce between the price of the award 
and the market price.  
In addition, the award of public  contracts as concessions reduc es or even eliminates the 
competition for contracts and effectively undermines the chances of achieving the best outcome on procured services for both CAEs and consumers. All the problems described above related to the 
consequences of insufficient transparency and fair ness in the award of c oncessions are therefore 
extended to these contracts.
 103   
There is also evidence (with regard to the port sect or, for instance) that th e granting of concessions 
as licences or authorisations under conditions of  inexistent or insufficient competition leads to 
higher prices and reduced quality of the services provided to cont racting authorities and consumers 
while excluding economic operators from the relevant markets.  
4.3. INSUFFICIENT LEGAL PROTECTION OF TENDERERS  
 
Pursuant to Article 47 of the Ch arter of Fundamental Rights of the EU, anyone whose rights and 
freedoms guaranteed by the law of the Union are violated has the right to an effective remedy. 
                                                 
99 See PwC study, p. 58.  
100 See PwC study, pp. 148-149. 
101 See website  http://ec.europa.eu/internal_market/cons ultations/2010/c oncessions_en.htm . 
102 See «The Role of Transparency in Preventing Corruption in Public Procurement: Issues for Consideration» by 
János Bertók, published in «Fighting Corruption and promoting integrity in public procurement» / OECD, 2005, p. 86. 
103 See footnote 89 above. 
 
 19However, this right is not fully ensured to tender ers participating in procedures for the award of 
concessions. 
Concessions falling outside of the scope of the Cl assic Directive are not covered by the Remedies 
Directive. Hence, tenderers do not benefit fr om an adequate system guaranteeing effective 
enforcement of EU Treaty principles. Although some  Member States (such as France, Portugal and 
Romania) extended the application of the Remedies Directive to service concessions, a number of 
other (Germany, UK, Sweden and Netherla nds, for instance) have not done so.104 In all, 24.9  % of 
the respondents to the online cons ultation considered that nationa l rules did not offer effective 
remedies to all parties wishing to challe nge decisions awarding service concessions. 
It follows that some important guarantees provid ed for by the Remedies Directive (such as the 
obligation to abstain from concludi ng a contract before the expiry of the standstill period or the 
conditions for ineffectiveness of concessions awarded directly) ar e not available in many Member 
States. As a result, potential viola tion of the EU Treaty principles cannot be adequately tackled by 
the aggrieved economic operators. Moreover, any ar bitrariness of CAEs en joying wide discretion 
throughout the tendering process escapes effective scrutiny. Taki ng into account the number of 
concessions reported to be either awarded di rectly or tendered according to inadequate 
standards,105 this may effectively lead to a continuous failure to redress national situations of 
deficiency or non-compliance with the application of the Treaty principles. 
 
5. BASE LINE SCENARIO  
 
If no action is taken to addre ss the status quo, the economic in efficiencies brought about by the 
legal uncertainty and the existing entry barriers to EU concession markets will persist and might even get worse. The use of concessions will continue to be hindered by legal and economic risks, undermining innovation and competitive pressures, in particular those which arise as new players 
emerge.
106 This problem will be the most prevalent in  those Member States where no rules, or 
unclear rules, apply to awarding concessions but also, to some extent, in Member States where 
concessions are already regulated.107  
 As a consequence of legal uncerta inty, those Member States which have limited or no experience 
of concessions and which refrain from resorting to these arrangements in view of perceived and 
existing risks and related costs will most likely con tinue in the same vein. By not engaging in PPPs 
they miss out on opportunities to us e concessions where they would be  the most efficient mode of 
delivering public tasks.
108 CAEs may continue to provide serv ices directly, even in cases where 
                                                 
104 In relation to Germany, PwC reported that German procurement chambers have rejected applications for 
review regarding services concessions while referring to  the decisions of the Court of Justice of the EU and 
confirmed that CAEs have to adhere to the basic principles of the Treaty; See PwC study, page 68. 
105 With reference to the port sector, where concessions ar e prevalent, the results from  a survey conducted by the 
Institute of Transport and Maritime Management and the University of Antwerp for the European Seaport 
Organisation (ESPO) show that 14  % of the respondents declared that th ey had directly awarded contracts for 
port services and 12  % awarded the contracts through a process of private and bilateral negotiations from a 
qualified pool of market players, see «The awarding of seaport terminals in Europe» final draft 28 May 2008, 
page 11. 
106 See CSES study, pp. 109 and 142. 
107 Failure to develop an EU-wide concession market m eans that concessions awarded in those Member States 
will face less competition than they would otherwise. 
108 A recent report on PPPs conducted by the consultant Arcturus Group states that  «Le cadre juridique des PPP 
reste inexistant et leur statut est flou: la situation actue lle repose sur la jurisprudence (notamment l’arrêt «Stadt 
 
 20externalisation would appear to be  a preferable solution. This woul d contribute to underinvestment 
in many public services which already today ar e obsolete and costly fo r the public purse. In a 
context of increasing budgeta ry constraints such problem s might be aggravated.  
 In those Member States where CAEs will noneth eless decide to resort to concessions for 
modernising services and infrastructures, econo mic operators might still approach concession 
award procedures with mistrust. Furthermore, as the existing legal barriers will not be addressed, a 
substantial number of EU ec onomic operators will not be aw are of many of the economic 
opportunities related to concessions and may decide not to bid for c ontracts, discouraged by real or 
perceived lack of equal treatment.  Within the current framework, the use of EU stru ctural and cohesion funds in association with 
concession contracts and PPPs is likely to remain  sub-optimal, without the multiplying effect of 
private investment. This may have an impact on Member States’ capacities to negotiate and 
achieve balanced contractual rela tions with private operators, wh ich could affect the long-term 
sustainability of EU co-fi nanced infrastructures.
109  
  Finally, for ordinary public contr acts, significant use may still be made of less detailed and less 
restrictive concession-type procurem ent rules. This will also help to restri ct economic opportunities 
to EU operators with regard to  public contracts and in addition will undermine the effectiveness of 
Public Procurement Directives.  On the other hand, the continuation of the current s ituation is likely to bene fit certain stakeholders. 
Incumbent operators in particular might benefit fr om better opportunities to secure the extension of 
current contracts, given the lack of  precise rules and weak competition.  
 
6. S
UBSIDIARITY  
 
Although the aforementioned problems have an effect  at national level, they also fundamentally 
affect the efficient functioning of the EU Internal Market, in view of the absence of a level playing 
field.   Until now most of the Member States have not uniformly interpreted, sufficiently clarified or 
implemented the relevant Treaty principles for the correct attribution of c oncessions contracts. The 
ensuing lack of legal certainty and foreclosure of markets is unlikely to be eliminated without intervention at the appropriate level. Even if Member States were to take legislative action to establish a legal framework based on  the Treaty principles of tran sparency and equal treatment at 
national level, at least two problems would remain unr esolved:  the risk of legal uncertainty related 
to interpretations of those principles by nationa l rules and the risk of wide disparities among 
legislations in different Member  States, resulting from the lack  of precision of applicable EU 
standards.    Hence, in order to eliminate discrepancie s among national regimes and ensure homogenous 
understanding of the Treaty principl es across Member States, it appe ars that these principles must 
                                                                                                                                                        
 
Halle). Un cadre réglementaire adapté est de plus en plus demandé par les nouveaux États membres qui 
souhaitent utiliser cet outil avec une certaine sécurité juri dique, notamment, au regard de l’attribution des fonds 
structurels dans ce cadre.», see report on «L’avenir des pa rtenariats public privés (ppp) au sein de l’Union 
Européenne», Arcturus Group, note de synthèse, page 17. This information has also been confirmed in bilateral meetings with Member States' representatives in particular from Estonia and the Czech Republic. 
109 See footnote 71 above. 
 
 21be given concrete expression and translated into  EU secondary legislation. This will help to 
achieve a working Internal Mark et on concessions which ensures equal opportunities for all EU 
economic operators and fosters competition for thos e contracts. EU intervention is therefore the 
most appropriate way to overcom e existing barriers to the EU-wid e concession market and to 
ensure convergence and a level playing field in the EU, ultimately guaranteeing the free movement 
of goods and services in 27 Member States.   This is already the case today for works concessi ons (with the exception of the utilities sector), 
which are subject to some provision s of EU secondary legi slation, as well as  public contracts, 
which are fully covered by secondary legislation.   Secondary rules in the field of public procurement improve efficiency and specify the obligations 
derived from the application of the fundamental freedoms, of which the most important are the free 
movement of goods and services and the right of establishment. Pursuant to Article 114 TFEU, the 
European Union « adopts the measures for the a pproximation of the provisions laid down by law, 
regulation or administrative action in Member Stat es which have as their object the establishment 
and functioning of the Internal Market». Moreover, wh enever the EU legislates in the field of the 
right of establishment and free mo vement of services, it must ground its action in the provisions of 
Article 53(1) and 62 TFEU. The aforementioned pr ovisions restrict the choice of the European 
lawmaker to directives as the only possible legal instrument to coordinate  national legislations 
facilitating the establishment of economic operators and their access to the services market. As the 
objective of the present initiativ e is to ensure non-discriminatory access to the market of 
concessions, the combined legal basis of Arti cles 114, 53.1 and 62 of the Treaty is therefore 
adequate.  
 
7. O
BJECTIVES  
 7.1. 
 GENERAL OBJECTIVES  
 
The overall objectives of the presen t initiative are to contribute to economic growth and innovation 
through the creation of a s upportive framework for a wider use of concessions. 
 
7.2. SPECIFIC OBJECTIVES   
 
• Better value for money for both CAEs and us ers, to create more business opportunities 
for EU companies and to foster innovation through increased competition for the award of 
concessions.  
• To facilitate investments, in particular on infrastructure projects and on the provision of 
quality strategic services to the public.   
 
7.3. O
PERATIONAL OBJECTIVES  
 
• To improve legal certainty with regard to the definition of concessions and their award 
procedure.   
• To reduce entry barriers caused by diverg ent national rules and inappropriate 
procedures for the award of concession contracts.  
 
• To improve the legal protection of tenderers.  
 
 22 
8. POLICY OPTIONS  
 
The Commission departments have  analysed different policy op tions aimed at meeting the 
objectives set out in the previous section.  
1. No policy change 
 
2. Focused infringement policy 
 
3. Soft law 
 
4. Legislation — Basic rules 
 
5. Legislation — Detailed rules 
 
6. Legislation — Mixed rules 
(Basic rules + ) 
 
Only the legislative options will be subject to a deta iled analysis since, as will be explained below, 
neither the focused infringement policy nor the so ft law option seems adequate to accomplish the 
above mentioned objectives fully.   
8.1. N
O POLICY CHANGE (OPTION 1)  
 
The points made with regard to the Baseline Scenario apply with respect to this option. 
 
8.2. FOCUSED INFRINGEMENT POLICY (OPTION 2) 
 
This option would consist in increased and more systematic use of the infringement procedure 
under Article 258 of the TFEU to address cases of violation of the Treaty principles during the 
award of concessions, in part icular service concessions.  
 This might encourage CAEs to abandon some pract ices which are clearly not in line with the 
Treaty principles. It might also, to a certain exte nt, improve information on concession contracts in 
the EU and increase the fairness of  the award procedures. It might also provide the Court with the 
necessary opportunities gradually to  clarify the definition of conces sion as well as the rules on the 
publication of concession notices and on th e  organisation of award procedures.  
 However, the hypothetical positive effects of such a policy can only be expected in the long term. 
Moreover, the legal uncertainty c ould even temporarily increase, as  CAEs would be  aware of the 
risk of Commission intervention without having the necessary tools to ensu re compliance with EU 
law. This option would also be of little help in  reducing costs for companies operating cross-border 
(in particular SMEs), as it would not result in  any coordination of rules on award procedures 
throughout the EU or on the availability of adequate remedies.  Hence the effects expected from this option do not  correspond to the objectives of the initiative. 
Indeed, this option would neither  guarantee legal protection nor ensure legal certainty.   
 
This option is hereby discarded with out further analysis of its impact. 
   
 
 238.3. SOFT LAW (OPTION 3) 
 
The soft law option would consist in either an interpretative communication of the Commission or 
a recommendation.   A communication would state the Commission’s understanding of the applicable EU law and the 
Court’s case law on concessions, but would not establish new rules. This clarification of the Treaty 
principles would commit the Commission only and would not bind third parties. Already in 2000 
and 2008, the Commission adopted communications on concession contracts. Neither of these 
Communications has done much to improve the pers isting situation of legal uncertainty or tackled 
existing entry barriers in Member States to th e award of concessions. There are therefore few 
grounds for believing that a more in-depth explana tion would substantially alter the behaviour of 
CAEs.  A new communication could probably raise aw areness of the case law of the Court among 
stakeholders. However, according to the results of the consultations, most stakeholders were 
already aware of the relevant ju risprudence, although they often s howed a lack of understanding of 
specific decisions in their responses.
110 Furthermore, as the case law of the Court has not developed 
significantly since the adoption of  the abovementioned Ccmmunications  and still does not cover all 
relevant aspects of the awar d of concessions, a new communi cation would not introduce new 
clarifications of substance.  In addition, a communication would be unlikely to improve information on concession contracts in 
the EU. More CAEs would probably become aware of the obligation to pu blish a concession notice 
but, as a communication cannot spell out all the re levant conditions of such publication, ‘adequate 
advertisement’ would not be ensured and public ation in the OJEU would not be guaranteed.  
With regard to improving the legal protection of  tenderers, a communicati on could only emphasise 
that remedies with respect to concession contracts must not be less efficien t than those applying to 
similar claims based on domestic law and must not  make it impossible or excessively difficult in 
practice to obtain judicial protection. This could have a positive impact but would fall short of ensuring the rights of unsuccessful tenderers prov ided explicitly under the Remedies Directive or 
recognised by the Court. Therefore, the overall level of legal protecti on would not increase. 
 
Most importantly, a communication would not be binding on public entities. As a result, CAEs 
adhering to its terms could still not be sure that  a national court would not  find a procedure illegal 
and cancel it or order damages to be awarded. Si milarly, tenderers would still be uncertain about 
the CAEs' compliance with the in terpretation provided in the co mmunication. For these reasons, a 
communication would also fail to  address the problem of le gal barriers and costs.  
 A recommendation would have similar content to a communication and woul d essentially produce 
a similar effect because of its non -biding nature. Thus, the observations made with reference to the 
communication also apply, with th e necessary adjustments, to this soft law instrument.  
 On these grounds, it would appear that a comm unication or a recommendation would not fully 
achieve the operational objectives of the initiative.  
                                                
 
110 For example, some respondents referred to a definition of concessions which was clearly erroneous. National 
traditions seemed to play a crucial role in th eir interpretation of the notion of concession: e.g. some French 
stakeholders believed that the criteria for distinguishing public contracts from concessions included the global nature of the devolution of tasks or the length of a contract, whereas ECJ case law leaves no doubt on this 
particular point, clearly referring to the tr ansfer of risk as the ultimate criterion. 
 
 24 
This option is therefore discarded with out further analysis of its impact.  
 
8.4. LEGISLATION — CONTENT OF THE OPTIONS  
 
There are two extreme legislative options: Basic rules  corresponding to ex isting provisions for 
works concessions of Di rective 2004/18/EC or Detailed rules  based on the current legal 
framework for public contracts. The third option, Mixed rules , amounts to a compromise between 
the two in which the Basic rules are complemented with certain solutions inspired by the Detailed 
rules. The exact scope of each option is discussed further in Section 9.  
Table 4 — options content  
 
PROVISIONS 
 BASIC RULES  DETAILED RULES  MIXED RULES  
Definition of concessions  X X X 
Publication in the OJEU  X X X 
Deadline for applications  X   
Remedies  X X X 
Selection criteria   X  
Technical specifications   X X 
Publication of contract award 
notices   X X 
Rules on public-public:   X X 
Rules on modifications   X X 
Rules on governance   X  
General requirements on the 
suitability of tenderers, on equal treatment during award procedures 
and on award criteria as deduced 
from the Court’s case law.
   X 
Award criteria   X  
Mandatory award procedures   X  
Duration This issue is not directly concer ned by rules on award procedures; rather 
it relates to the content of the contract and the adequacy of the time 
needed for the recovery of the investments. Hence, it shall not be included in the present assessment.
 
8.5. LEGAL INSTRUMENT  
 
As explained in Section 6, this in itiative, should be based not only on  Article 114 TFEU but also 
on Articles 53(1) and 62 TFUE, pr oviding a specific legal basis for the coordination of legislation 
conditioning access to establishment and services markets. These provisions specifically require 
the use of a directive as the only possible legal instrument.  
 Due to the nature of the envisaged rules, a single directive will permit to re gulate both classic and 
utilities sector.         
 
 25 
 
9. IMPACT ANALYSIS OF THE LEGISLATIVE OPTIONS  
 
9.1. SCOPE OF LEGISLATION  
 
9.1.1.  Utilities sector 
 
The Utilities Directive covers important sectors such  as water, ports, airports, energy and heating. 
These sectors are characterised by a significant number of concessions,111 but even works 
concessions are at present excluded from the scope of  application of this Directive. This situation 
appears unjustified. Both the contra cting authorities and other CAEs  in the Utilities sectors are 
bound to apply Treaty principles w ith regard to concessions. Consequently, when dealing with 
concessions in these sectors, th ey encounter the abovementioned pr oblems relating to the imperfect 
application of the Treaty, lack of  legal certainty and barriers to entry. If works and service 
concessions were to be covered by the classic Directive but utilities remained outside its scope, this 
would add yet another level of le gal uncertainty regarding which se t of rules apply. For example, 
concessions are often awarded by lo cal authorities, and these author ities may be subject to both 
sets of rules. Economic operators might thus find it hard to understand that a service concession for 
running a municipal car park would be subject to procurement rule s, whereas a concession awarded 
by the same local authority for running the entire water supply system would not. That is why one 
directive on concessions will cover both  utilities and classic sectors.   
  
9.1.2.  Priority and non-priority services 
 
Non-priority services (e .g. port services, caterin g, health, education and social services) are at 
present only partially covered by the Public Procurement Directives. The intention of the 
legislator was that certain specific service cont racts, which were consid ered not to have much 
potential for cross-border trade, should be exclud ed from the full application of the rules of the 
Directives, for a transitional period. However,  in the light of the recent findings by the 
Commission published in the "Evaluation Report: Impact and Effectiveness of EU Public 
Procurement Legislation", many categories of services  formerly classified as  non-priority services 
showed a relatively high ratio  of cross-border provision. Conseque ntly, any new proposal in the 
field of public purchases must take  account of these data. Therefor e, such conclusions justify the 
extension of the envisaged rules to those services.  
 Nevertheless, services such as social, health an d education continue to have a limited cross-border 
dimension, due to the strong impact of different national cultural traditions.  
 Furthermore, the data presented in Section 3 show s that concessions are less prevalent in the above 
sectors. It must also be said that the full covera ge of these services  by the complete framework is 
politically very sensitive. It is therefore appropri ate to establish a specific regime for the award of 
these services. This regime shoul d include the obligation to publis h by CAE, at th e beginning of 
the budgetary year, a prior information notice. Such  a notice would ensure adequate transparency, 
without prejudice to national system s of purchase of this kind of services. Such a legal framework 
should also encompass a requirement to publish a concession award notice. 
 
                                                
 
111 See CSES study, p. 55. 
 
 26 
 
9.1.3.  Public passenger transport services by rail and road as covered by Regulation 
1370/2007112  
  
At the time when the Transport Regulation was a dopted, service concessions in this field were 
governed by the Treaty principles. Nevertheless, this  sector was considered sufficiently distinctive 
to be subject to a more precis e and specific set of rules (incl uding the possibility  of awarding 
contracts to ‘internal opera tors’). For this reason, and in order not to interfer e with the objectives of 
EU transport policy and to maintain the stabil ity of the legal framework, service concessions 
currently subject to the Transpor t Regulation should be exlcuded from  the scope of the future EU 
legislation on concessions. Moreover, as the current rules applicable in this sector already provide 
for transparency and a fair degree of legal certa inty, changing the legal framework applicable to 
these concessions is not considered a priority. 
 
9.1.4.  Air transport services as covered by Regulation 1008/2008113  
 
Pursuant to this Regulation, a Member State may impose a public  service obliga tion (PSO) in 
respect of scheduled air se rvices between two airports  in the Union, in particular when one of them 
serves an outlying or developing region. To this  end, the Regulation lays  out a very detailed 
procedure for setting up these PSOs and for compulso ry tendering. For this reason, and in order to 
avoid any possible conflict with rules that might be drawn up unde r this initiative, it seems 
preferable to exclude from its scope c oncessions in air tr ansport services.  
 
9.1.5 Concessions awarded to entities enjoying of  exclusive rights granted in compliance with 
EU law  
In the utilities sector the grant of  exclusive rights for the operation of a network is part of specific  
legislative measures aimed at liberalising such s ectors. An exclusive right granted in compliance 
with EU law makes it unnecessary  and redundant to follow a competitive procedure for the award 
of a concession of network management services  to  the holder of an excl usive right since no other 
competitor would be in a position to apply for such  contract. Moreover, the transparency resulting 
from a mandatory publication of the act granting the exclusive ri ght should permit all interested 
parties to fully evaluate the compliance of such right with Treaty or Uni on sectoral legislation. 
Therefore it seems appropriate to provide for c oncessions awarded under such conditions to be 
excluded from the scope of a legislative initiative..  
 
9.1.6. Concessions of less important value 
 
Currently, secondary legislation on Public Procur ement applies only to public contracts and works 
concessions of a value equal or s uperior to a certain threshold, above  which they are subject to an 
irrebuttable presumption of cro ss-border interest. Similarly, national provisions on concessions 
usually apply only to contracts above a certain value. All options discussed below involve the 
existence of such thresholds, below which se rvice concessions and works concessions would 
remain governed only by the Treaty principles.  
Thresholds currently applicable to public contr acts and works concessions indicate not only their 
economic importance but also refl ect a political consensus on th eir cross-border interest. The 
                                                
 
112 OJ L 315, 03.12.2007. 
113 OJ L 293, 31.10.2008. 
 
 27appropriate threshold for service concessions should  therefore reflect the extent to which economic 
operators located in other Member States are interested in such concessions. Note, however, that such interest depends not only on the value of the concession but also on its geogr aphic location, 
the sector concerned, differences in economic wealt h, the rate at which con cessions are used, costs 
(including labour costs), etc. To assess the cross- border interest would mean  gathering data on the 
actual participation of non-domestic  companies in bidding procedures for concessions of different 
values. However, as already explained, accessing such information is extremely difficult if not impossible, given the existing lack of transparenc y. (This is particularly true of information on 
concessions advertis ed and awarded).  
Furthermore, reference to existing national threshol ds is largely irrelevant, not only because they 
differ widely in those Member States which have  regulated concessions but also because national 
thresholds reflect interests of national policy rather than the cross-border inte rest of the contracts.  
Nor does it appear appropriate to take the existing threshol ds for service contracts and 
automatically extend them to service concessions , since concession contr acts have a higher value 
and are more complex and long-lasting.  
The same applies to the method used for calcul ating the value of pub lic service contracts
114. 
Indeed, given that in concession contracts the investments and reve nues are often spread over many 
years, it seems inadequate to calculate the contra ct value on the basis of a fixed and limited initial 
timespan (as is the case with public  contracts). Consequently, the th reshold value ap plicable to a 
service concession should be calculated on the basis of the total value of services provided during 
the whole duration of the concession.  
Against this background, it does not seem appropr iate to establish a threshold for service 
concessions that is equal to or slightly greater than the one appl icable to public service contracts 
(currently €  193  000) but calculated on the basis of the total value of services sti pulated. The risk is 
that this threshold would cover concessions that have no clear cr oss-border interest and would 
impose unreasonable costs and administrative burde ns on CAEs and companies. Furthermore, 
covering small-value concessions  might prove ineffective.  
Stakeholders have also been cons ulted on the appropriate level of thresholds for service concession 
contracts. The PwC study showed considerab le support from economic operators and public 
authorities for a threshold for se rvice concessions equal to the on e already applicable to works 
concessions (currently €  4 845  000). It was considered that th is would keep the additional 
administrative burden and costs proportionate to the value of the contract, a nd reflect the contracts' 
clear cross-border interest. This would also be an advantage in terms of legal certainty and 
simplification.115 
 
9.1.7. Scope of application in time 
 
The proposed legislative initiative will only affect concession contracts whic h are advertised after 
the date on which the future legislation comes into  force. Hence, new legisl ation will not  have any 
impact on the performance of ongoing concession contracts. 
 
                                                 
114 According to Art. 9.8(b)(II) of Directive 2004/18/EC, in the case of contracts without a fixed term or with a 
term greater than 48 months, the value of a public service contract is the monthly value multiplied by 48.  
115 By contrast, a threshold of a value of €2.5 million was,  in the same study, considered too low. For details, see 
PWC study, p. 119. 
 
 28 
  
9.2. O
PTION 4: LEGISLATION — BASIC RULES  
 
Basic rules correspond to the exis ting rules for works concessions.  
 The 'basic rules' option would clarify the rule s on publishing concession notices, on some basic 
aspects of the conduct of award procedures (p rincipally by setting minimal deadlines for the 
submission of a tender) and on available remedies.   Economic operators and CAEs responding to the ta rgeted consultation mos tly agreed that the 
Classic Directive rules currently applicable to public works concessions  bring legal certainty.
116 It 
can therefore be reasonably assumed that similar rules for concessions not currently covered would 
improve legal certainty and benefi t CAEs and undertakings in at le ast two ways. First, in Member 
States where concessions are already in use, both  parties would run less ri sk of the concession 
being considered as illegally  awarded and thus cancelled.117 Second, in all Member States, and in 
particular in those where CAEs presently shy away from awarding concessions, legal certainty 
could help the development of PPPs through this type  of contract, increasing the overall efficiency 
of the public action and creating new business opportunities for undertakings.118 This expectation 
is clearly shared by many economic operators  who responded to th e public consultation.119  
 If CAEs become more interested in awarding public tasks as concessi ons, this is also likely to push 
Member States to develop or complete nati onal legal frameworks covering non-procurement 
aspects (e.g. taxation, property is sues etc.) to make concessions  even easier to use and more 
beneficial. Public entities would thus have at  their disposal a much better legal instrument, 
enabling them to alleviate budgetary pressures by transferring the provision of services to third 
parties, whenever appropriate. This would substa ntially reduce legal uncertainty and thus stimulate 
the uptake of concessions and therefore also of PPPs. Projects which are t oday too costly or too 
complicated to be carried out by the CAEs themselves  might, in this event, be more easily realised 
thanks to third parties’ resources and know-how . Ultimately, the increased uptake of concessions 
and hence PPPs is expected to benefit consumer s, who would gain from  new investment in 
infrastructure and service provision.  The 'basic rules' approach would include clarifying the definition  of a concession. To the current 
definition would be added a reference to transferri ng the operating risk to the concession holder. In 
addition, the types of relevant risk would be cl arified. This would eliminate confusion between 
concessions and public contracts and is likely to  reduce the number of public contracts wrongly 
                                                
 
116 See Annex I B, p.3 and 6. 
117 The risk is also taken into account by financial institutio ns and is reflected in the cost of credit and in equity’s 
eagerness to support the project financially. 
118 This conclusion may be drawn from the Report on the Green Paper consultation, which indicates that the lack 
of legal certainty is one of the major factors deterring the players from using concessions and from taking part in 
the concession award procedures. See the Green Paper on  Public Private Partnerships and Community Law on 
Public Contracts and Concessions, COM(2004) 327 final of 30.4.2004. 
119 Of the economic operators who answered the question on possible changes to the way public services are 
delivered following the legislation on service concessions, some 48  % consider it likely that authorities which 
currently provide the services directly will externalise them by means of a concession. On the other hand, only 
around 18  % feared a shift in the opposite direction. 
 
 29qualified as concessions, thus also improving the application and effectiveness of Public 
Procurement Directives.120  
 
An obligation to publish  a concession notice in the OJEU fo r all concession contracts above a 
certain threshold would be proposed to eliminate le gal uncertainty as to wh ether the requirement of 
‘adequate advertisement’ has been  met. It would give all EU ope rators better information on 
concessions and reduce the number of direct awar ds. It would also reduce the cost of bidding for 
concessions, in particular  the cost borne by SMEs.121 Non-publication would be considered a 
serious infringement of EU law, opening the possibi lity of claiming ineffectiveness of the contract 
as a result of the associated extension of Remedies Directives.  Mandatory publication of a concessi on notice would also apply to awards resulting from contracts 
being substantially change d while they are being implemented. (It would therefor e also apply to 
renewals).
122 
 
A legal requirement to publish a concession noti ce would probably lead to service concession 
contracts being systematically published at rates comparable to  works concessions and public 
contracts.123 Even if publication did not immediately result in a higher number of  expected bidders, 
positive effects could still result. For example,  bidders would have a greater opportunity to 
challenge the award of a concession.124 Indeed, when calculating the value of their bid, bidders 
usually do not know how many competitors will submit an  offer. As a result, firms tend to base the 
value of their bid on their perception of compet ition in their market. EU-wide publication of 
concession notices would thus enable bidders to submit more competitive offers, to the benefit of both CAEs
 and consumers.125 126 127 Moreover, some stakeholde rs believed that making it 
compulsory to advertise conce ssions would probably open the mark et for new entrants and could 
be a way to promote PPP projects by raising awar eness of such projects and introducing more 
                                                 
120 According to the CSES study, ‘ironically, the greatest ea rly impact may be on public contracts that have been 
designated service concessions in order to avoid procurement procedures'. see CSES study, p.110. 
121 Difficulties in obtaining information on business opportunities is a recurrent problem raised by SMEs as they 
are unable to allocate sufficient reso urces to collecting information. See European Code of best practices 
facilitating access by SMEs to public procurement contracts , SEC(2008) 2193 of 25.6.2008. EDITOR'S NOTE: 
I was unable to locate this document on the internet: please check the reference number. 
122 According to the case law of the Co urt, an extension or a renewal of a concession may qualify as material 
change of the terms of the award and therefore correspond to the award of a new contract, see Case C-454/06, Presstext Nachrichtenagentur [2008] ECR I-04401, point 34. 
123 In 2004, the estimated compliance rate was 46  %. See Evaluation of Public Procurement Directives,  
Markt/2004/10/D.EDITOR'S NOTE: I have not een able to check this reference. 
124 A contestable market is a market served by a small number of firms but which is nevertheless characterised 
by competitive pricing because of the existence of potentia l short-term entrants. Its fundamental features are low 
barriers to entry and exit. In theory, a perfectly contestable market would have no barriers to entry or exit. 
125 The Commission services estimate that, in 2006, the savings made by publishing notices for public contracts 
amounted to 8  % of the value of those contracts (representing €  30 billion – which is equivalent to the entire 
budget for regional and convergence policy). A similar rate of savings could be achieved by publishing 
concession notices in the OJEU and thus increasing competition and contestability. Given that the value of the concessions market was around €138 billion in 2000-2009 (see Chapter 3), some €
 2 billion could be saved each 
year, at a conservative estimate. This calculation is based on  data for only eight Member States and does not take 
into account the expected future growth of the concessions market. 
126 'Contracting out by relying more on open tenders, governments are likely to obtain public service at lower 
cost. In order to avoid fragmented markets detrimental to efficiency, tendering rules should be harmonised across 
jurisdictions and government levels…' see Market Mechanisms in Public Service Provisions , OECD working 
paper nº 6, page 4. 
127 See CSES study, p. 171. 
 
 30competition. These assumptions have been largely confirmed by the CSES study,128 which judges 
the potential effects of this  action as significant.  
 As many as 61.6
 % of the respondents to the online c onsultation agreed that compulsory 
publication of a service concession notice in the OJEU would help increase the transparency of the 
award process. Such publication wa s also supported by most of th e undertakings or associations 
taking part in the targeted cons ultation. The overwhelming majority of firms and their associations 
considered that the current Classic Directive rule s applicable to works concessions ensure a fair 
degree of transparency129. 
 Firms were also asked how the publication of serv ice concessions would aff ect different categories 
of stakeholders. Some 44
 % of undertakings answ ering this question e xpected the impact on 
consumers to be positive whereas 24  % believed it would be negati ve. Economic operators were 
even more optimistic about th e impact on companies: some 51  % of respondents felt that 
publishing service concessions would have a positive impact, while around 22  % feared negative 
consequences (due to increased co sts). The rest believed that the im pact would be insignificant or 
zero.  
 
Regulating the minimum deadlines for the submission  of bids  could also be crucial to avoid 
discrimination. It would prevent a contracting entity from fixing a very short deadline in order to 
eliminate unwanted tenderers. This would greatly diminish the risk of corruption and ensure fair 
outcomes. It would also encourag e the participation of  trans-border bidders,  who normally need 
more time to prepare their bid (e.g. to seek advice on local legal provisions, translate documents or 
find a locally based partner). 
 
The provisions applicable today for works con cessions require contract s awarded by both public 
and private concession holders to be published and awarded following a competitive procedure. 
Moreover, contracting authorities  have the opportunity to impos e on concession-holders the 
obligation to sub-contract a minimal part  of the concession to third parties.  
 Although the overall assessm ent of the legal framework appli cable to works concessions by the 
stakeholders is positive, the aforementioned ru les were considered by many stakeholders as 
burdensome and inefficient. Therefor e, the solutions assessed in the Report include neither of these 
provisions.   As evidenced by the CSES study, the effects of th e 'basic rules' option in terms of increased 
competition, greater innovation and the increased use of concessions are likely to be particularly strong in sectors where services are currently provided directly by public authorities. By contrast, 
increased use of concessions is not likely to take place in sectors and Member States where 
concessions are already in use. The greatest benefits to these sect ors would be improved 
transparency and equal treatment leading to in tensified competition. Th e CSES study concluded 
that other possible differences of impact in different sectors would be relatively minor. 
                                                
 
128 According to the report, the "result of requiring a publication notice under the ‘light approach’ would be to 
promote considerably more transparency ". According to the same study, the in crease in transparency is likely to 
attract more operators having sufficient capacities and, he nce, would bring more innovation. In addition, there is 
relatively "little opposition expressed to the idea of a le gislative provision obliging CAEs to publish a service 
concession notice in the Official Journal of the European Union, since this was generally recognised as a direct 
way of promoting transparency in concession markets". CSES study, pp. 100, 110 and 117. 
129 See Annex I B, p.3. 
 
 31 
The CSES study also indicated a po ssible drawback: greater transpar ency in awarding concessions 
not covered at present by secondary legislation c ould increase the dominance of large companies in 
some sectors such as water supply and waste water tr eatment. Were this situation to materialise, it 
could make it more difficult for smaller undertaki ngs to access the market. However, this is by no 
means certain. Large companies are already esta blished in and have access to many national 
markets that interest them. This situation is not li kely to change much with  increased transparency. 
Furthermore, it is not certain that SMEs really are less competitive, especially when it comes to smaller concessions.
130 As a matter of fact, smaller undertak ings would still benefit from greater 
flexibility and better knowledge of local conditions. According to a survey conducted for the 
European Commission, ‘procurers have a rather fa vourable view of SMEs as suppliers in public 
procurement. Being more flexible and quicker in reacting to their needs than large companies seem 
to be relevant stre ngths in the eyes of most procurers’131. Advertising concessi ons should also help 
SMEs to access the market.   According to the CSES study, stakeholders felt that  relatively few costs were  likely to be generated 
by basic legislation. Administrative costs may in crease for CAEs following the introduction of 
compulsory publication, since the number of bidders may increase and there would be the 
additional burden of preparing a minimum amount of information to be published. However, this 
cost would be small compared to the value of the contract and may be offs et by the better value for 
money achieved thanks to intensified competiti on. Furthermore, the increase in administrative 
costs should not be measured against a situation wh ere there is no publication at all, or publication 
of only very basic information. Such practices should be considered unlawful under the Treaty 
principles and might actually generate much higher co sts due to the risk of litigation or intervention 
by the European Commission. Besides, in certai n Member States, the existing practices or 
legislative requirements involving mu ltiple publication in national bu lletins or the sector-specific 
press may actually involve costs high er than publicati on in the OJEU.  
 The increase in compliance costs fo r undertakings is also often quot ed as a likely consequence of 
legislation on concessions, although this claim is rarely substantiated. Ind eed, it is difficult to see 
why the obligation on a contracting entity to publish a call for a concession would increase costs 
for the undertakings. This might perhaps be true if bidders found they need ed to prepare better 
tenders in order to face livelier competition. On the other hand, it  is certainly true that incumbent 
companies receiving contracts directly or quasi di rectly would have to take part in a bidding 
process (which might lead to them losing their concession) and to spend money on preparing their 
tenders. However, such costs al ready flow from observance of the Treaty principles. Finally, it 
should be noted that most of the respondents to th e targeted consultation (a ddressed to the business 
community) consider that the current Classic Di rective rules applicable to works concessions 
generate only marginal costs, if any.
132 
 Legislation is the only way to br ing service concessions award pro cedures within the scope of the 
Remedies  Directives. This would make it possible to substantially improve th e legal protection of 
bidders, guaranteeing not only their right to contest the result of an award procedure on the grounds 
of EU law but also giving a number of practical  judicial guarantees to all aggrieved bidders, 
                                                
 
130 In France, home base of Veolia and Suez (the larg est European players in the water sector), small and 
medium-sized companies still manage to compete for and obtain concessions for water and waste water management. 
131 ‘Evaluation of SME’s access to Public Procurement mark ets in the EU’, DG Enterp rise and Industry, Final 
Report, September 2010, p. 66.  
132 See Annex I B , http://ec.europa.eu/internal_market/cons ultations/2010/co ncessions_en.htm . 
 
 32whether foreign or domestic. This would give  economic operators grea ter confidence in the 
impartiality of CAEs’ decisions and lead them  to take part in a higher number of tendering 
procedures (in other Member States  as well as in their own). As demonstrated by several studies133, 
the assumption that bids by foreign companies ar e automatically rejected  may be an important 
factor discouraging cross-border participation in procurement procedures. Remedies would also 
enable authorities to monitor, regularly and efficiently, whether the Treaty principles are being 
respected in those areas, where there w ould be no EU secondary legislation.  
 It is less certain whether the objective of increasing equal treatment  throughout the procedures 
would be effectively achieved by having basic rules on concessi ons. Nevertheless, ‘adequate 
advertisement’ through compulsory publication, togeth er with the effective remedies available to 
the bidder, may improve the fairne ss of the procedure by discipli ning the CAEs. Mo reover, if the 
present rules on exceptional cha nges to contracts for public work s concessions were extended to 
cover all concessions, this would foster compliance with the principle of equal treatment. It would 
ensure that competition for the contract is not undermined by substantial and unjustified changes to the contract after it is signed. Th is would improve the current legal situation where it is difficult to 
ensure compliance with the equal treatment principle because it is  difficult to draw a line between 
justified and abusive changes to a contract, relating to the provision of additional services. 
 
On the other hand, the 'basic rules' approach would neither regulate the award procedure nor 
restrict choice.  It would thus allow for negotiations betw een tenderers and the contracting entity. 
Under this 'basic' scenario, the rules governing the award procedures would not be harmonised.  
 
Nor would the 'basic rules' option specify the concrete requirements of CAEs in terms of the choice 
of selection criteria, award criter ia or technical specifications . In that respect, both the CAEs and 
the economic operators would still be  left with uncertainty as to the interpretation of the case law 
of the Court on these issues. The disparity of national rules would still generate extra costs and market entry obstacles. Similarly, entry barriers arising from divergent national rules and inappropriate award procedures might persist.    The responses to the online consul tation confirm that stakeholders  expect rules enabling EU-wide 
competition to have a positive and direct impact on the price and quality of the services used. As 
many as 32.4
 % of the respondents believed that the pri ce would decrease (which is twice as many 
as those believing it would increase) and 36.2  % thought that quality w ould improve (against 
26.5  % who believed it would deteriorate). Simila rly, many of the consulted economic operators 
considered that the current rules on public works concessions contribute to lower prices and higher 
quality. 
According to the results of the online consultati on, the stakeholders who are expected to benefit 
most from the planned legislation are the users of services (according to 31.9  % of respondents), 
followed by public authorities, companies and taxpa yers. Employees were most often quoted as the 
group which would benefit the least (27  %).   
 
However, despite these expected benefits, the 'basic rules' option does not fully eliminate the problems of legal uncertain ty described earlier.  
 
                                                
 
133 See e.g. ‘ Opening the public sector to SMEs in the Alpine Space. Coping with the difficulties encountered by 
SMEs when tendering abroad . Abstract of the SWOT analysis conducted by the ALPPS  (Alpine Public 
Procurement Services) — April 2005.  
 
 33When it comes to transposing future 'basic rules' legislation into national law, it should be noted 
that all of the propos ed provisions alread y apply to works concessions and have thus already been 
transposed. Member States will only need to exte nd them to service concessions. Moreover, certain 
Member States have already adopted legislatio n on service concessions,  embracing most of the 
proposed requirements. The new provi sions will be enforced through th e disciplining effect of the 
Remedies Directive.  
 
 
9.2.1.  Option 4: Legislation — Basi c rules — Economic Impact 
As the CSES report concludes, ‘a greater profile  for service concession s would promote innovation 
and productivity and ultimately economic growth a nd employment. Use of concessions in the new 
areas outlined could provide a boost to the creativ e economy, with all its benefits in terms of 
locally generated and sustainable growth’134. In addition, the introduction of the 'basic rules' 
approach is likely to result in lower prices and more investment. More efficient and higher-quality 
strategic services such as energy or water se rvices may help boost the competitiveness of the 
European economy as whole.  
Greater competition for the award of service c oncessions could also improve and speed up the 
delivery of public investment. This was the view of 48.7  % of respondents to the online 
consultation, while 44.3  % disagreed. In addition, 37.3  % of the respondents believe that greater 
competition would have an impact on access to servic es of general economic interest, and as many 
as 84.1  % think it may make these services more accessible. 
The accuracy of these forecasts seems to be conf irmed by the downward trend of prices in France, 
where the 1993 Loi Sapin  made it obligatory to publish a conce ssion notice at natio nal level and to 
follow a competitive procedure. According to studi es by a French institute (Labo GEA), prices 
paid by consumers for water supply and waste water treatment are constantly decreasing: they have 
fallen on average by 5.5  % per year since 2004 and fell by as much as 9.2  % in 2006. Moreover, 
according to a study by another French institute  (FP2E), the R&D work done by private water 
sector concessionaires — investing €140 million in 2008 alone — has permitted a ‘technological 
leap’ in the field of water and waste wate r management and environmental protection.135       
9.2.2.  Option 4: Legislation — Ba sic rules — Social Impact 
 
When it comes to the possible social imp act of 'basic rule s' legislation, 48.1  % of respondents to the 
public online consultation felt that greater competition for the awar d of service concessions would 
benefit employment in the sectors concerned. A ccording to the CSES study, greater transparency 
would create the ‘possibility of  more innovative approaches and greater choice and efficiency in 
the public services’.  On the other hand, the study also draws attention to  possible drawbacks in th e field of employment. 
If public authorities take an increased interest in concessions, this could result in a shift from the 
direct provision of public services towards externa lisation via  concessions, and thus the incumbent 
operators would lose their contracts.  T o  r e g a r d  t h i s  a s  a  d r a w b a c k  i s  t o  a s s u m e  that public sector employe rs offer better working 
conditions and that the execution of a public task by a private company is more efficient, as the 
                                                
 
134 See CSES study, p. 110. 
135 See ENGREF , http://engref.fr/labogea  and «Les services publics d’eau et d’assainissement en France», 
BIPE/FP2E, 4éme édition, mars, 2010. 
 
 34work is organised differently. Howe ver, consultation of the social partners shows that at least the 
first of these assumptions is questionable. Although it was not possible to compare working 
conditions in public and privat e undertakings throughout the EU  specifically in the sectors 
concerned by concessions, statis tics quoted for the waste manageme nt sector in France indicate 
that the salaries paid by private employers we re actually higher than those paid to public 
employees. Interestingly, the online consultation indicated that the number of local jobs was 
expected to decrease: th is was the view of 57.3  % of those participants who believed that greater 
competition would have an impact on employment. On the other hand, 50.6  % of the 
abovementioned group believed that working conditions would improve. According to 47.5  % of 
the respondents, EU legislation on service concessions would l ead public authorities to make 
greater use of concessions to  deliver public services: 51.6  % of respondents cons idered that this 
would lead to the disappearance of local jobs, but 55.8  % felt it would improve working conditions.  
 There are fears that the externalisation of task s could have negative consequences. For example, 
these tasks might be take over by undertakings which organise th eir work differently and need 
fewer employees. However, the cu rrent EU legislation on safegua rding employees’ rights in the 
event of transfers of undertakings
136 may be applicable here. In such  cases, this legislation restricts 
the scope for lay-offs, as the transfer does not in itself constitute valid grounds for dismissing 
workers. This legislation applies every time ther e is a change of employer, provided that the 
transferred entity maintains its iden tity. (The 'transferred entity' is defined as an organised grouping 
of resources having the objective of pur suing an identifiable economic activity). 
 Not all concession awards will  be covered by these rules
137. The case law of the CJEU concerning 
the scope of this Directive recognis es that it applies in cases involving a transf er of public service 
activities from an administration (direct provision) to a private law company, from a legal person 
governed by private law to a mu nicipality and from one undertak ing to another, following the 
award of a public contract. Seve ral consulted stakeholders ha ve also indicated that the 
abovementioned EU provisions would often apply to a change of concession-holder. In several of 
their responses to the targeted co nsultation, social partners also clearly expected that the shift 
would have no significant impact on employment, as EU law prevents the employer from laying 
off employees on the grounds of a transfer.  Some other social partners were hesitant as to the actual impact of compulsory advertisement and 
observed that it is ‘difficult to claim a priori wh at impact on job creation or losses the compulsory 
advertisement of services concessions might have . It might be the case that the enhancement of 
efficiency in the provision of public services c ould be achieved through creation of new jobs, in 
other cases — through the abolishment of some workplaces.’
138 
 
9.2.3.  Option 4: Legislation — Basic rules — Environmental Impact 
The introduction of basic rules on the award of services concessi ons would have no impact on the 
ability of CAEs or regulatory bodies to set e nvironmental standards th at must be respected. 
Consequently, anticipated external isation and the increasing popular ity of concessions are unlikely 
to impede or influence environmental policies. Th at being said, the CSES report observed that  ‘in 
                                                 
136 See Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States 
relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001).
 
137 For instance, the rules may not apply to a change of private partner in a mixed capital entity executing a 
concession, given that a change in the shareholding  of a company does not constitute a transfer of the 
undertaking, as the employer’s le gal personality remains the same. 
138 See Annex I B, p.8 . 
 
 35important areas for the environment, where serv ice concessions are common, such as the water 
sector and waste treatment especially, encourag ing innovatory processes would also lead to 
advantages for the environment’. Overall, both the increased use of c oncessions and increased 
competition resulting from greater transparency  are likely to have a positive influence on 
investment in and the management of services which affect the environment.  
 
9.3. OPTION 5: LEGISLATION — DETAILED RULES  
 
The detailed rules, as explained above, corres pond to the rules applicab le to public contracts.  
 As was mentioned in the 'Options' section, the 'Detailed rules' option embraces all the legal solutions included in the 'Basic  rules' option, except for rules on subcontracting. The two options 
are therefore expected to have very similar impa cts on legal certainty. Detailed rules would clarify 
the provisions on advertis ing concessions and would draw a cl ear distinction be tween concessions 
and public contracts.  This option is also likely to enhance legal certa inty. Indeed, unlike the Ba sic rules, it offers a 
comprehensive and detailed formulation of the Tr eaty principles and makes them applicable to 
many aspects of the award procedure. Most importan tly, this is the case with rules on selection and 
award criteria, and on technical sp ecifications. Its specific provisi ons are likely to ensure even 
better access to the market.    The detailed provisions going beyond the 'basic' opti on considered in the previous section can be 
divided into two different categor ies. The first category covers clarifying provisions, enhancing 
legal certainty without a dding additional or more concrete oblig ations. This category includes rules 
on public-public cooperation and on modificati ons. The second category encompasses rules 
imposing additional – or concretised – obligations  on CAEs or Member States, such as many  
procedural requirements foreseen today in the Pub lic Procurement Directives, as well as envisaged 
provisions on governance.     Rules on public-public cooperation  would more clearly define the boundaries of the inititiave and  
would make it easier for CAEs to know when to  apply rules for the award of concessions. This 
should in turn reduce the perceived risks and inci dence of litigation. Reducing the costs of legal 
assistance associated with avoiding (perceived) legal uncertainty, managing risk and dealing with 
legal challenges should generate budgetary savi ngs. Clarification (through targeted legislative 
intervention) of the applicability of EU rules co uld bring valuable suppor t to the development of 
public-public cooperation in procurement. These t ypes of collaborative pu rchasing between groups 
of public purchasers (often for purposes of achieving scale or administrative efficiency) seem set to 
increase as local authorities look for ways to optimise the us e of scarce public resources. 
 Rules on modifications  would clarify the notion of modification of substantial terms of the award 
of the contract. They would also provide for a «safe harbour» cove ring modifications with a value 
that does not exceed the thresholds of the inititiave and is below 5
 % of the price of the initial 
concession and provided that the modification does not al ter the subject-matter of the concession.  
  Rules on selection criteria  would ensure that candidates are assessed purely in terms of their 
capacity to carry out a concession contract. These rules would therefore pr event CAEs from laying 
down other criteria which, although strictly speaking non-discrimina tory, would nevertheless allow 
them to eliminate potential contractors on more or  less arbitrary basis. More importantly, these 
provisions would help improve the situation of SM Es, not only by giving them the chance to sub-
 
 36contract but, in pa rticular, by providing certain guarantees to consortia. Th e rules require CAEs to 
apply the criteria jointly to all members of a c onsortium and prohibit the exclusion of candidates 
for the sole reason that they rely on a third party.  
  Detailed rules would also ensure that the choice of award criteria  is restricted to the price and the 
most economically advantageous tender (MEAT). Ag ain, this restriction en sures transparency and 
fairness of choice, as CAEs ar e bound to evaluate tenders on th eir merits, without including 
discriminatory considerations such  as a relationship of personal tr ust with a bidder. An important 
advantage of detailed rules is th at they would require CAEs to publish the relative weighting of 
their award criteria. This allows effective verification of whether the criteria have been applied 
correctly and impartially. By ensuring impartiality on the part of CAEs, this  increased transparency 
may boost the participation of non-domestic EU companies. 
 Provisions on technical specifications  play an important role in preventing any distortion of the 
free movement of goods and services, reaching beyond the issue of awarding concessions. Public 
Procurement Directives require observance of the rules on technical specifications even when 
awarding non-priority services — which are exem pt from almost all other provisions of the 
Directive, including the publication of a tender no tice. The complexity of the services provided 
through concessions would not be an impediment  to applying the existing rules on technical 
specifications, as the specifications can also be fo rmulated in terms of pe rformance or functional 
requirements. 
 
The obligation to publish an aw ard notice would make the pro cedures more transparent and 
reinforce the self-discipline of CAEs. It would al so provide the Commission with a useful tool for 
monitoring and obtaining statistical data  on the number of concessions awarded. 
 
All of the abovementioned provisions would help  improve the general fairness of concession-
awarding procedures and provide better access to the market. They would thus strengthen 
competition between bidders, delivering better  value for money and promoting innovation.  
 However, according to the CSES report, many st akeholders perceive th e complexity of the 
'detailed rules' option as a major threat. It app ears from the consultations carried out that this 
position is actually shared by both public admini strations and economic operators. The most 
problematic issues are, in their view, the choice of procedure and the award criteria.  
 Given the market's strong perception of the diffe rence between public contracts and concessions, 
certain types of provision s applicable to public contracts such as the obligation to follow a specific 
procedure  might actually reduce the uptake of concessi ons and diminish legal certainty (although 
they would probably make the proc edures fairer). It might, indee d, be counterproductive to insist 
that only the  standard procedures  (i.a. open or restricted proce dure or 'competitive dialogue') be 
used for awarding concessions, and also counter productive to prohibit different models of 
negotiation (commonly used in certain MS to award concessi ons) except in very specific 
circumstances. Such restrictions could prove inad equate to the needs of more complex concessions 
and might increase the risk of litigation an d of subsequent cancellation of the contract. 
'Competitive dialogue' has been invented as a more transparent solution to be used in cases of 
legal, financial or technical complexity. However, a large number of stakeholders claim that is is 
inadequate for dealing with th e type of problems encountered  when awarding concessions.  
 
With reference to the award criteria, apart from  those who do not understand the concept of MEAT 
and reduce it only to price, many argue that, in vi ew of the long duration of concessions, and given 
 
 37their complex character and the im portant responsibilities confe rred on the concession-holder, the 
contracting entity should be permitt ed to re-use some bidder-related criteria at the award stage.  
 According to the CSES study, if the 'detailed ru les' option were applied, ‘many companies would 
simply withdraw from the concessions market. The effects of this are the opposite of those outlined 
as the benefits of the light er approach (Basic rules)’
139. This is because of the perceived risks and 
additional costs of this option. Moreover, the way CAEs and ec onomic operators perceive the 
'detailed rules' might determine their effect more  than their actual strengths and weaknesses.  
 This perception may not actually be well grounde d. Indeed, some idea of the additional burden 
these rules would impose (in te rms of the length of the pro cedure and the human resources 
deployed) can be obtained from the relevant figures for public contracts
140. According to the study, 
public contract procedures conducted unde r EU Procurement Directives in 1992-2003141 generated 
enforcement and compliance costs for the CAEs estimated at less than 0.7 per cent of the contract value. These costs were largely offset by a reduction in prices (res ulting from increased 
competition) of more than 2.5 pe r cent of the contract value.
142  
 
Overall, however, it is quite possible that the major benefit of the 'basic rules' option (which is an 
increased interest in conce ssions among both economic operators  and administrations, and the 
resulting increase in the efficiency  of public action) would be lost if detailed rules were introduced. 
Many economic operators fear th at overregulation of concessions  would provoke a shift towards 
the direct provision of services or direct awards to public ‘in-house’ entities. Against this 
background, the CSES report conclude s that ‘the ‘fully fledged’ (Detailed rules) approach is 
thought to provide only marginal ad vantages over the ‘light appro ach’ (Basic rules)  in terms of 
open, transparent and fair procedures’143, in comparison with clear disadvantages.  
 The 'Detailed rules' approach appears, therefore, to provide better access to the market, but at the 
same time its advantages would be neutrali sed by substantially reducing the market for 
concessions. CAEs would therefore fail to realise the expected benefits and consumers would fail 
to gain access to cheaper and better quality serv ices. The most affected group of stakeholders 
seems to be economic operators who would, in many  cases, actually lose market opportunities as a 
result of a shift towards direct provis ion of services by public administrations. 
 In addition, transposing detailed rules may be more problematic th an transposing the basic rules. 
Detailed rules are, indeed, much more complex a nd require much greater ad aptation of the existing 
national rules or practices. Nevertheless, the pro posed rules are well known to the Member States 
as they currently apply to public contracts. The Re medies Directive will, again, help ensure that the 
rules are enforced, but the comple xity of the system is  likely to provoke grea ter perturbations as 
compared to Basic rules.  
 
9.3.1.  Option 5: Legislation — Deta iled rules — Economic Impact 
 
Introducing detailed rules is like ly to have a negative economic impact because  it might reduce the 
extent to which concessions  are used. The objectives a nnounced in the Commission’s 
                                                
 
139 See CSES study, p. 111. 
140 Evaluation of Public Procurement Directives, Markt/2004/10/D. 
141 Directive 93/37/EEC (OJ L 199, 9.8.1993), Directive 93/36/EEC (OJ L 199, 9.8.1993), Directive 92/50/EEC 
(OJ L 209, 24.7.1992) and Directive 93/38/EEC (OJ L 199, 9.8.1993). 
142 See Evaluation of Public Procurement Directives, Markt/2004/10/D, executive summary, point 9, page iv. 
143 See CSES study, p. 6. 
 
 38Communication on PPPs144 (in particular investment in infr astructure projects and innovation in 
public services provision) would not be achieved, as CAEs might stop using the most popular and 
adequate legal forms of PPP. According to CS ES, ‘there would be a dampening effect on 
innovation, with the eventual  consequences of lower growth and employment’.145 The overall 
economic impact would be suboptimal.  
9.3.2.  Option 5: Legislation — Deta iled rules — Social Impact 
 
The impact on employment and the quality of jobs is likely to be limited. The anticipated shift 
towards direct provision of servi ces should not provoke direct lay-o ffs if all the requirements are 
met for applying the abovementioned EU legisla tion on transfers of undertakings (see the 
evaluation of social impacts for Basic rules). Howe ver, if the reduced use of concessions were to 
result in less innovation and poor er-quality services, the social impact might be negative. 
 
9.3.3.  Option 5: Legislation — Detaile d rules — Environmental Impact 
 
As with the social impact, the result could be slightly negative due  to slower innovation. 
 
9.4. O
PTION 6: LEGISLATION — MIXED RULES  
 
Our analysis of the two preceding ‘e xtreme’ options shows that neither of them is capable of fully 
achieving the objectives of the initiative. Although th e 'Basic rules' approach appears to be a better 
solution, offering clear economic benefits and po ssible social and environmental advantages, it 
nevertheless falls short of fully meeting certain ob jectives. In particular, the objectives of improved 
market access and increased transparency would be  better achieved if legislation included a few 
additional provisions on technical specifications, selection criteria , award criteria  and publication 
of the award notice.146 Such provisions could therefore be usefully added to the basic rules . On the 
other hand, it has been shown that detailed rules would be rejected by the market players and might 
result in less use of concessions147. However, there has been no substantial opposition to including 
limited rules on technical specificatio ns, selection criteri a or award notices  in the legislative 
proposal. Such additional rules might apply not onl y to service concessions , but also to works 
concessions, in order to k eep both types of concession under a similar legal regime. 
 
 
An optimal set of rules should not only ensure better access to  the market and greater legal 
certainty but also avoid the dissuasive effect of th e detailed rules (diminished use of concessions). 
The choice of each concrete requirement regarding the award of concessions must be informed by 
a comparison of its expected benefits and possi ble negative consequences. The rules already 
                                                 
144 COM(2009) 615 final of 19.11.2009. 
145 See footnote 141 above, p. 172. 
146 This balanced approach would also reduce the risks of favouritism or corruption which are particularly high 
in view of the large sums normally at stake in this type of contract. As noted by the OECD, 'corruption arises in 
procurement when the agent of the procurer in charge of procurement is influenced to design the procurement process or alter the outcome of the process in order to favour a particular firm in exchange for bribes or other 
rewards. Examples might include drawing up the specifications in a way that excludes other firms from 
competing for the contract or cutting short the period of responses to limit the number of bidders'. see background note by Darryl Biggar, in Procurement Markets , OECD Journal of Competition Law and Policy, 
1998. 
147 According to EPEC’s European PPP Report  (2009), 'the difficulties of navigating the procurement process  
[i.e. the public procurement standard award procedures] can discourage investors, particularly without local 
partners and knowledge'. See page 20. 
 
 39referred to above (Basic or Detailed ) will be taken into account as a basis, as these rules essentially 
cover the requirements which can be de rived from the Treaty principles.  
In addition to the provisions of  the basic rules, 'mixed' ru les would require provisions on  public-
public cooperation  and on modifications,  which would enhance legal certainty as to, respectively, 
the scope of the new legislati on and the provisions governing re-tendering of  a modified 
concession. These rules would  allo w national authorities to implement legislation more effectively  
while helping companies to identify confiden tly valid business opportunities and organise 
themselves accordingly.  It would also require  selection criteria to be prop ortionate to the subject matter of the contract and 
allow for the use of third parties’ capacities. Such rules would ensure that the candidates' 
qualifications are assessed objectively. Additiona lly, the proposed rules would also encourage 
small and medium-sized firms (SMEs) to take part  in the tendering process, as part of wider 
consortia or as subcontractors, since their capaciti es would be evaluated jo intly by the contracting 
entity. At the same time, the contracting entity could also expect to be given a non-exhaustive 
catalogue of evidence of these capacities. This w ould improve the fairness and transparency of 
procedures, preserve flexibility and allow CAEs to require evidence considered appropriate for 
carrying out the contract. This fl exibility is justified by the long duration and complexity of the 
contractual relations established within the fram ework of a concession. As  to possible provisions 
on procedures and on award criteria , account should be taken of the objections raised in the 
context of the 'Detailed rules' option, while at the same time providing for some additional 
guarantees of fairness in the aw ard procedure. On the basis of  the Court’s case-law, it seems 
reasonable to require the use of objective, non-discriminatory awar d criteria linked to the subject 
matter of the contract, and these criteria would have to be publis hed prior to the submission of 
offers (in decreasing order of importance or togeth er with the respective weightings). Social and 
environmental criteria could be in cluded here. By contrast, the more  restrictive provisions currently 
applicable to public contracts, su ch as the compulsory use of pric e or MEAT criteria, would not be 
included. In particular, the CAEs wo uld have the option of referring to  features of the operator that 
are relavant to the concession's subject ma tter. This goes beyond the scope of MEAT. 
As to the shape of award procedures , guarantees related to the compulsory ex ante  publication of 
criteria or minimum deadlines would substantia lly improve fairness. Specific requirements for 
safeguards during the negotiation stag e could also usefully be added. For instance, the conracting 
entity could be obliged to disseminate the same information to all bidders and to keep a material record of the negotiations conducte d. Such provisions can be expect ed to increase  transparency, 
fairness and legal certainty, there by helping achieve a number of th e present initiative's objectives. 
Fairer competition and more consistent legi slation might improve the outcome of tendering 
procedures without hindering the ex pected increase in th e use of concessions. At  the same time, the 
proposed rules would not provide fo r a fixed catalogue of fully-structu red award procedures, as this 
would arguably be quite burdensome and incompa tible with the need for flexibility. Indeed, 
referring to the standard proce dures would effectively mean appl ying all the other rules laid down 
in the Public Procurement Directives — in other words, the 'Detailed rules' option.   
Furthermore, the calculation of the value of a co ncession might sometimes be problematic, in light 
of the need to take in to account the future – uncertain – reve nue of the concessi onaire. Hence the 
publication of the award notice co uld contribute to streamlining the calculation methods and to 
discipline those authoriti es who would tend to undervalue th e concessions in order to avoid 
publication. For this reas on, publication of an award notice includi ng details of ca lculation of the 
concession value could be made co mpulsory for all concessions the value of which is higher than € 
2 500 000. 
 
 40 
The positive effects of mixed rules have been c onfirmed by the respondents to our public online 
consultation. Participants were asked how the provision of works an d services might be affected by 
clear and appropriate EU rules on the procedure for awarding works and service concessions. In 
response, 25.9  % said that the price would decrease and 31.9  % that the quality would improve. 
(This is against 16.8  % of respondents who believed that the price would increase and 18.4  % who 
thought that the quality would de teriorate). According to 46.5  % of the respondents, EU legislation 
on services concessions ensuring Europe-wide tr ansparency and equal opportunities for all EU 
operators would help deliver the best value for m oney. In our targeted cons ultation of the business 
community, fair selection criteria and technical specifications were often cited as crucial features 
of a fair and transparent procedure, and problems c oncerning selection criteria  were also most often 
cited as shortcomings of award procedures in which the respondents had participated.148 Similarly, 
in the study realised by PwC, a scenario very similar to the ‘mixed rules’149 was analysed and 
received a positive overall appreciation both from the private150 and the public sector.151 
The requirements mentioned above would not be as detailed and prescrip tive as the corresponding 
provisions of the Public Procurement Directiv e, but would neverthe less contain concrete 
obligations. They would leave substantial flexibility  in the hands of the contracting entity (freedom 
to choose the most appropriate award procedure, subs tantial room for manoeuvre in choosing the 
award criteria or the required evid ence of compliance with the selection criteria), duly taking into 
account the complex nature of concessions and the existing practices and legal traditions. The 
abovementioned provisions impose only a small burden on the stakehol ders and should not 
substantially raise the compliance cost. Obligations such as ex ante  publication of criteria, non-
discrimination of consortia or the simultaneous dissemination of information for negotiations are 
sufficiently clear and self-explan atory and should therefore not cause problems. This would be a 
great improvement over the curren t situation, where the vague and general nature of the Treaty 
principles makes them hard to understand. In other words, the above  rules will effectively reduce 
the margin of interpretation left to Member States on these issues. 
The transposition process for the 'mixed' rules is likely to be similar to the process for transposing 
'basic' rules, and no major problems should be expected. Although many of the proposed 
provisions are generic in nature, they always re fer to concepts well known in the national legal 
systems and currently applicable to public contracts. At the same  time, the proposed solutions are 
less detailed and prescriptive than  the detailed rules and their im plementation should not involve 
                                                 
148 Annex I B, p.3. 
149 Base line scenario: introduction of detailed rules for awarding concessions consistent with the current 
Commission interpretative communication on concessions under Community law (OJ C 121, 29.4.2000). The threshold amount for service concessions is €
 5 million, while the threshold amount for a works concession 
remains as at present. These rules include a clear definition of concessions, rules on advertising concessions, 
technical specifications, the obligation to follow a certain procurement pro cedure (see Options 2 and 3) and some 
judicial protection. 
150 It should be noted that the rate of approval was lower among SMEs. However, the scenario tested did not refer 
to certain SME-friendly provisions which are set to be a pa rt of the Mixed Rules, such as provisions favouring the 
participation of consortia and rules on sub-contracting.  
151 In its opinion on the Commission’s Communication on Mobilising private and public investment for recovery 
and long term structural change: devel oping Public Private Partnerships,  COM(2009) 615 final of 19.11.2009, 
the Committee of the Regions considered that 'it is  too soon for the Commission to regulate on service 
concessions. If the Commission decides nonetheless that service concessions are to be covered by the 
Community’s procurement directives, it is extremely important that these rules be as simple and flexible as possible. In that case they should be guided by the provisions of the directives on public works concessions and 
on no account by the provisions governing procurement of services'. See recommendation nº 3, ECOS-V-005. 
 
 41any major problems in Member States which alrea dy have rules or follow practices compliant with 
the Treaty principles. The Remedies Directive w ill additionally serve the purpose of efficient 
enforcement. 
9.4.1.  Option 6: Legislation — Mixed rules — Economic, Social and Environmental 
impact 
 
If the market players correctly  perceive the scope of proposed extra provisions, all impacts 
(economic, social and environmental) should be slightly improved in comp arison with the effects 
of the Basic rules. 
 
 42 
10. COMPARING THE OPTIONS  
 
On the basis of the above analysis, it is clear that  the 'Basic rules' option would achieve most of the 
objectives and significantly improve both lega l certainty and market access. The long-term 
economic effects of such rules are likely to be cl early positive, while the social and environmental 
impacts would also be positive or at least neutra l. However, they would fall short of making the 
award process sufficiently clear and transparent.  The 'Detailed rules' option would make for better results in terms of fair  procedures and better 
value for money, but would also have major drawb acks. There is a risk that overregulation would 
discourage the use of concessions and that public author ities might increasingl y turn to ‘in-house’ 
solutions instead of externalising the services. In that case, the overall impact would be negative. 
 By contrast, the 'Mixed rules' option capitalises on all the benefits of the 'Basic rules' approach and provides some additional advantages in terms of fairness and better value for money, as provided for by the 'Detailed rules'. Consequently, 'Mixed ru les' would best achieve the objectives of the 
initiative, and - given th eir flexibility - also seem to provide  the most appropriate framework for 
stimulating the use of concessions and therefore engagement in PPPs. 
 
In the light of the above anal ysis it is recommended that the Commission adopt Option 6 — 
Mixed rules — which represents an ambitious and comprehensive solution.
  
 
In terms of scope, the legislation should cover concessions in the field of utilities (as defined currently in Directive 20 04/17/EC), but the core of its provisi ons should not apply to some of the 
non-priority services (a s  currently defined in Directive 2004/18/EC and Directive 2004/17/EC), 
namely to educational, health and social servic es.. Nor should the envisa ged legislation apply to 
public passenger transport services by rail and road as covered by Regulation 1370/2007 or to air 
transport services as co vered by Regulation 1008/2008.  
 
11. M
ONITORING AND EVALUATION  
 
The indicators for evaluating the legislation will be as follows:   
• Number of concession notices  and concession award notic es published in the OJ and 
yearly changes of this number, 
• Estimated value of concessions advertised at  EU level (measured as a percentage of 
GDP) 
• Average number of bidders replying to con cession tenders advertis ed at EU level (to 
measure competition) 
• Number of concession contracts awarded to firms operating in a country other than the 
country where the concession was put out to tender (to measure cross-border activity). 
• Percentage of Court rulings on concessions wh ich deal with clarif ying either the notion 
of concession (and the confusion between the noti ons of public contracts and concessions) or the 
procedures for the award of concession contracts (to measure to what extent legal certainty has 
been improved)  
• Value of the concessions awarded 
 
These indicators will be retrieved from concessi on notices and (in the Mixed rules scenario) from 
the award notices. The obligation to publish an aw ard notice, if included in the future legal 
 
 43instrument, will provide systematic insight into the number of concessions published, the estimated 
value of the contract and its relation with the va lue calculated on the basi s of the winning tender, 
the origin of the winner and the coll ection of other information that is  useful from the point of view 
of the abovementioned parameters.    
 
Summary of the impacts identified 
 
Effects on:  
Legal certainty  Procedural 
compliance 
with EU law Legal 
protection of 
tenderers Effective 
competition  Facilitation of 
Investments  
 
Basic rules 
  
+  
≈  
++  
+  
++ 
      
Detailed 
 rules 
  
+  
++  
++  
++  
-- 
      
 
Mixed rules 
  
++  
+  
++  
+  
++ 
 
 
Stakeholders  
Consumers/Taxpayers CAEs Economic 
Operators Employees  
 
Basic rules 
  
+  
++   
++  
+ / ≈ 
     
Detailed rules 
  
+ /≈  
--  
--  
-/ ≈ 
     
 
Mixed rules 
  
++  
+  
+  
+ / ≈ 
 
 Magnitude of impact as compared with the baseline scenario: 
++ strongly positive; + positive; -- strongly negative; — negative; ≈ marginal; ? uncertain 
 
 44Annex I — Outcome of  the consultations 
 Annex I A 
 Response statistics for PUBLIC CONSULTATION ON AN 
INITIATIVE ON CONCESSIONS — ONLINE QUESTIONNAIRE     
         
 Status : Active     
 Date open :       
 End date : 2010-07-09     
 There are      185 responses matching your criteria of a total of      185 records in the 
current set of data.        
         
 Search criteria     
 All data requested        
         
         
 Meta Informations     
         
         
 I — PROFILE     
         
 1. Are you replying: (Please choose only one answer)     
   Number of 
requested records (185) - 
All respondents % Total n° of respondents 
(185)     
 As a citizen/consumer 67      (36.2%)          
 On behalf of an 
organisation/company/public authority ( → go to Question 1.c) 118      (63.8%)          
             
 A. Citizen/ Consumer        
         
 1.a Gender     
   Number of 
requested 
records (67) - all citizens/ 
consumers % Total n° of 
citizens/ 
consumers (67) % Total n° of 
respondents 
(185)     
 Male 44      (65.7%)            (23.8%)        
 Female 23      (34.3%)            (12.4%)        
             
 1.b Your age group     
 
 45   Number of 
requested 
records (67) - all citizens/ 
consumers  % Total n° of 
citizens/ 
consumers (67) % Total n° of 
respondents 
(185)     
 Under 18 1      (1.5%)             (0.5%)          
 18-24 1      (1.5%)             (0.5%)          
 25-44 48      (71.6%)            (25.9%)        
 45-64 17      (25.4%)             (9.2%)          
 65+ 0        (0%)        (0%)     
             
 B. Organisations        
         
 1.c Type of organisation     
   Number of 
requested 
records (118) - 
all organisations/ 
companies/ 
public authorities   % Total n° of 
organisations 
(118) % Total n° of 
respondents 
(185)     
 Private company 54      (45.8%)            (29.2%)        
 NRA (national regulatory authority) 
(→ go to question 1.f) 2      (1.7%)             (1.1%)          
 Public administration ( → go to 
question 1.f) 32      (27.1%)            (17.3%)        
 NGO (non-governmental 
organisation) ( → go to question 1.e) 11      (9.3%)             (5.9%)          
 Trade union ( → go to question 1.e) 1      (0.8%)             (0.5%)          
 Professional association ( → go to 
question 1.e) 18      (15.3%)             (9.7%)          
             
 - Companies        
         
 1.d Number of employees in your organisation     
   Number of 
requested 
records (54 
companies) % Total n° of 
companies 
(54)      % Total n° of 
organisations 
(118)          
 Self-employed 1      (1.9%)             (0.8%)          
 1-9 2      (3.7%)             (1.7%)          
 10-49 10      (18.5%)             (8.5%)          
 50-249 9      (16.7%)             (7.6%)          
 250-499 5      (9.3%)             (4.2%)          
 500+ 27      (50%)            (22.9%)     54   
             
 1.e Which sector(s) do you operate in/do you represent?     
 
 46   Number of 
records (119) - 
54 companies invited to select one or more  
sectors % Total sectors recorded (119)      
 Water distribution 22 18,5%     
 Waste water and sewage processing 11 9,2%     
 Waste treatment 6 5,0%     
 Energy or heating services 18 15,1%     
 Transport (railway, tramway, bus, 
automated systems, cable) 15 12,6%     
 Port services 2 1,7%     
 Airport services 2 1,7%     
 Postal services 0 0,0%     
 Education (administration of schools, 
specialised education, training or catering) 3 2,5%     
 Health services 3 2,5%     
 Social services (nurseries, 
employment coaching, care of the 
elderly) 4 3,4%     
 Motorway operation 6 5,0%     
 Sports and leisure facilities 
(administration of sports halls, library services) 4 3,4%     
 Catering services 2 1,7%     
 Car parks 5 4,2%     
 Judiciary systems (administration of 
courts or prisons) 1 0,8%     
 Research and laboratory services 3 2,5%     
 Other (please specify) 12 10,1%  119   
             
 1.f Scope of activity     
   Number of 
requested 
records (54 companies) % Total n° of 
companies 
(54)      % Total n° of 
organisations 
(118)          
 Local/Regional 15      (27.8%)            (12.7%)        
 National 18      (33.3%)            (15.3%)        
 European 9      (16.7%)             (7.6%)          
 World 12      (22.2%)            (10.2%)        
             
 - National Regulatory Authorities (NRA)      
         
 1.f Scope of activity     
   Number of 
requested records (2 
NRA) % Total n° of 
NRA (2)      % Total n° of 
organisations (118)          
 Local/Regional 1      (50%)             (0.8%)          
 National 1      (50%)             (0.8%)          
 
 47 European 0        (0%)        (0%)     
 World 0        (0%)        (0%)  2   
             
 - Public administrations        
         
 1.f Scope of activity     
   Number of 
requested 
records (32 public 
administrations) % Total n° of 
public 
administrations (32)      % Total n° of 
organisations 
(118)          
 Local/Regional 17      (53.1%)            (14.4%)        
 National 12      (37.5%)            (10.2%)        
 European 1      (3.1%)             (0.8%)          
 World 2      (6.2%)             (1.7%)       32   
             
 - NGO        
         
 1.e Which sector(s) do you operate in/do you represent?     
   Number of 
records (11) - 
11 NGOs 
invited to select 
one or more  
sectors % Total sectors recorded (11)      
 Water distribution 0 0,0%     
 Waste water and sewage processing 0 0,0%     
 Waste treatment 0 0,0%     
 Energy or heating services 0 0,0%     
 Transport (railway, tramway, bus, 
automated systems, cable) 1 9,1%     
 Port services 3 27,3%     
 Airport services 0 0,0%     
 Postal services 0 0,0%     
 Education (administration of schools, 
specialised education, training or catering) 3 27,3%     
 Health services 1 9,1%     
 Social services (nurseries, 
employment coaching, care of the 
elderly) 1 9,1%     
 Motorway operation 0 0,0%     
 Sports and leisure facilities 
(administration of sports halls, library 
services) 0 0,0%     
 Catering services 0 0,0%     
 Car parks 0 0,0%     
 Judiciary systems (administration of 
courts or prisons) 0 0,0%     
 Research and laboratory services 0 0,0%     
 Other (please specify) 2 18,2%  11   
 
 48             
 1.f Scope of activity     
   Number of 
requested 
records (11 
NGOs) % Total n° of 
NGOs (11)      % Total n° of 
organisations 
(118)          
 Local/Regional 2      (18.2%)             (1.7%)          
 National 6      (54.5%)             (5.1%)          
 European 0        (0%)        (0%)     
 World 3      (27.3%)             (2.5%)          
             
 - Trade Unions        
         
 1.e Which sector(s) do you operate in/do you represent?     
   Number of 
records (1) - 1 
trade union 
invited to select 
one or more  
sectors % Total sectors recorded (1)        
 Water distribution 0 0%     
 Waste water and sewage processing 0 0%     
 Waste treatment 0 0%     
 Energy or heating services 0 0%     
 Transport (railway, tramway, bus, 
automated systems, cable) 0 0%     
 Port services 0 0%     
 Airport services 0 0%     
 Postal services 0 0%     
 Education (administration of schools, 
specialised education, training or 
catering) 0 0%     
 Health services 0 0%     
 Social services (nurseries, 
employment coaching, care of the 
elderly) 0 0%     
 Motorway operation 0 0%     
 Sports and leisure facilities 
(administration of sports halls, library 
services) 0 0%     
 Catering services 0 0%     
 Car parks 0 0%     
 Judiciary systems (administration of 
courts or prisons) 0 0%     
 Research and laboratory services 0 0%     
 Other (please specify) 1 (100%)     
             
 1.f Scope of activity     
   Number of 
requested 
records (1 trade 
union) % Total n° of 
trade union (1) % Total n° of 
organisations 
(118)          
 
 49 Local/Regional 0        (0%)        (0%)     
 National 1      (100%)             (0.8%)          
 European 0        (0%)        (0%)     
 World 0        (0%)        (0%)     
             
 - Professional 
associations        
         
 1.e Which sector(s) do you operate in/do you represent?     
   Number of 
records (52) - 
18 professional associations 
invited to select 
one or more  
sectors % Total sectors recorded (52)       
 Water distribution 7 13,5%     
 Waste water and sewage processing 7 13,5%     
 Waste treatment 6 11,5%     
 Energy or heating services 5 9,6%     
 Transport (railway, tramway, bus, 
automated systems, cable) 5 9,6%     
 Port services 3 5,8%     
 Airport services 2 3,8%     
 Postal services 0 0,0%     
 Education (administration of schools, 
specialised education, training or 
catering) 1 1,9%     
 Health services 1 1,9%     
 Social services (nurseries, 
employment coaching, care of the 
elderly) 1 1,9%     
 Motorway operation 2 3,8%     
 Sports and leisure facilities 
(administration of sports halls, library 
services) 1 1,9%     
 Catering services 1 1,9%     
 Car parks 3 5,8%     
 Judiciary systems (administration of 
courts or prisons) 0 0,0%     
 Research and laboratory services 0 0,0%     
 Other (please specify) 7 13,5%  52   
             
 1.f Scope of activity     
   Number of 
requested records (18 
professional 
associations) % Total n° of 
professional associations 
(18)      % Total n° of 
organisations (118)          
 Local/Regional 3      (16.7%)             (2.5%)          
 National 10      (55.6%)             (8.5%)          
 
 50 European 3      (16.7%)             (2.5%)          
 World 2      (11.1%)             (1.7%)          
             
         
 2. Country of residence or where yo ur organisation/c ompany is based     
   Number of 
requested 
records (185) - 
All respondents % Total n° of respondents 
(185)      
 Austria 4      (2.2%)          
 Belgium 5      (2.7%)          
 Bulgaria 13      (7%)          
 Cyprus 0        (0%)     
 Czech Republic 4      (2.2%)          
 Germany 53      (28.6%)          
 Denmark 1      (0.5%)          
 Estonia 0        (0%)     
 Greece 1      (0.5%)          
 Spain 7      (3.8%)          
 Finland 0        (0%)     
 France 16      (8.6%)          
 Hungary 1      (0.5%)          
 Ireland 2      (1.1%)          
 Italy 14      (7.6%)          
 Lithuania 2      (1.1%)          
 Luxemburg 1      (0.5%)          
 Latvia 0        (0%)     
 Malta 0        (0%)     
 Netherlands 2      (1.1%)          
 Poland 13      (7%)          
 Portugal 17      (9.2%)          
 Romania 11      (5.9%)          
 Sweden 2      (1.1%)          
 Slovenia 0        (0%)     
 Slovakia 1      (0.5%)          
 United Kingdom 13      (7%)          
 Iceland 1      (0.5%)          
 Lichtenstein 0        (0%)     
 Norway 1      (0.5%)          
 Switzerland 0        (0%)     
 Other 0        (0%)  185   
             
         
 II — KNOWLEDGE OF AND EXPERIENCE WITH CONCESSIONS     
         
 3. Which of the following statements about pu blic contracts and concessions is correct?     
   Number of 
requested 
records (185) - 
All respondents % Total n° of respondents 
(185)      
 
 51 In concessions, responsibility for 
exploitation of works/services is 
transferred from the public authority to the private operator 160      (86.5%)          
 In concessions, the concession-
holder always breaks even on the 
investment made 4      (2.2%)          
 In concessions, the public authority 
never pays for the works/services 
provided  8      (4.3%)          
 In public contracts, only the public 
authority pays for the works/services 
provided 7      (3.8%)          
 Don’t know 6      (3.2%)       185   
             
 4. Which of the sentences below correctly describes the present EU legal situation?     
   Number of 
requested 
records (185) - 
All respondents % Total n° of respondents 
(185)      
 Works and services  concessions are 
regulated only by the principles of 
transparency and equal treatment in the Treaty on the Functioning of the 
European Union 41      (22.2%)          
 Works and services  concessions are 
regulated by some of the rules in the 
Directive on coordination of procedures for the award of public 
contracts 20      (10.8%)          
 Works concessions are regulated by 
some of the rules in the Directive on 
coordination of procedures for the award of public contracts and 
services concessions by the general 
principles in the Treaty on the Functioning of the European Union 106      (57.3%)          
 Services concessions are not 
subject to EU law 8      (4.3%)          
 Don’t know 10      (5.4%)       185   
             
 5. Please indicate the sectors in which you have heard of concession agreements in 
your Member State.     
   Number of 
records (1144) - 
185 respondents 
invited to select 
one or more  
sectors % Total sectors recorded 
(1144)          
 Water distribution 124 10,8%     
 Waste water and sewage processing 97 8,5%     
 Waste treatment 87 7,6%     
 
 52 Energy or heating services 85 7,4%     
 Transport (railway, tramway, bus, 
automated systems, cable) 122 10,7%     
 Port services 72 6,3%     
 Airport services 81 7,1%     
 Postal services 28 2,4%     
 Education (administration of schools, 
specialised education, training or 
catering) 36 3,1%     
 Health services 43 3,8%     
 Social services (nurseries, 
employment coaching, care of the 
elderly) 35 3,1%     
 Motorway operation 97 8,5%     
 Sports and leisure facilities 
(administration of sports halls, library services) 50 4,4%     
 Catering services 39 3,4%     
 Car parks 88 7,7%     
 Judiciary systems (administration of 
courts or prisons) 18 1,6%     
 Research and laboratory services 13 1,1%     
 Other (please specify) 26 2,3%     
 Don’t know 3 0,3%  1144   
             
 6. Are any works or services concession-holders from other States active in your 
area/region?     
   Number of 
requested 
records (185) - All respondents % Total n° of respondents 
(185)      
 Yes 98      (53%)          
 No 23      (12.4%)          
 Don’t know 64      (34.6%)       185   
             
 6bis. Please indicate the State(s) of origin  of the concession-holder referred to above     
   Number of 
records (229) - Those who 
answered 'Yes' 
to Q6 (98) were invited to select one or more  
country/ies % Total n° of service 
concession-holders recorded 
(229)     
 Austria 6 2,6%     
 Belgium 5 2,2%     
 Bulgaria 1 0,4%     
 Cyprus 0 0,0%     
 Czech Republic 3 1,3%     
 Germany 26 11,4%     
 Denmark 5 2,2%     
 
 53 Estonia 1 0,4%     
 Greece 2 0,9%     
 Spain 25 10,9%     
 Finland 1 0,4%     
 France 60 26,2%     
 Hungary 2 0,9%     
 Ireland 2 0,9%     
 Italy 11 4,8%     
 Lithuania 1 0,4%     
 Luxemburg 3 1,3%     
 Latvia 1 0,4%     
 Malta 1 0,4%     
 Netherlands 11 4,8%     
 Poland 6 2,6%     
 Portugal 7 3,1%     
 Romania 2 0,9%     
 Sweden 6 2,6%     
 Slovenia 1 0,4%     
 Slovakia 2 0,9%     
 United Kingdom 23 10,0%     
 Iceland 1 0,4%     
 Lichtenstein 1 0,4%     
 Norway 1 0,4%     
 Switzerland 3 1,3%     
 Other (non-EEA State(s), please 
specify) 9 3,9%  229   
             
 6ter. Please indicate the sector of activity  of the concession-holder referred to above     
   Number of 
records (313) - Those who 
answered 'Yes' 
to Q6 (98) were invited to select one or more  
sector(s) % Total sectors recorded (313)      
 Water distribution 62 19,8%     
 Waste water and sewage processing 50 16,0%     
 Waste treatment 29 9,3%     
 Energy or heating services 33 10,5%     
 Transport (railway, tramway, bus, 
automated systems, cable) 37 11,8%     
 Port services 12 3,8%     
 Airport services 13 4,2%     
 Postal services 3 1,0%     
 Education (administration of schools, 
specialised education, training or 
catering) 5 1,6%     
 Health services 7 2,2%     
 Social services (nurseries, 
employment coaching, care of the 4 1,3%     
 
 54elderly) 
 Motorway operation 23 7,3%     
 Sports and leisure facilities 
(administration of sports halls, library 
services) 5 1,6%     
 Catering services 5 1,6%     
 Car parks 14 4,5%     
 Judiciary systems (administration of 
courts or prisons) 4 1,3%     
 Research and laboratory services 3 1,0%     
 Other (please specify) 4 1,3%  313   
             
 7. What is your experience with concessions?     
   Number of 
requested 
records (185) - 
All respondents % Total n° of respondents 
(185)      
 I am a user of concession services 
(*) 32      (17.3%)          
 I work for a company which has 
been granted a concession 36      (19.5%)          
 My business holds or has applied for 
a concession 15      (8.1%)          
 I represent an entity awarding 
concessions (*) 15      (8.1%)          
 I deal with concessions regulations 
(*) 33      (17.8%)          
 I represent labour interests in 
connection with concessions (*) 2      (1.1%)          
 I have no experience with 
concessions (**) 39      (21.1%)          
 Other (please specify) (*) 13      (7%)       185   
             
 8. Please indicate the sector in which you have most experience in dealing with 
services concession in your Member State.   
  
   Number of 
requested records (95) - 
those who 
answered by (*) to Q 7 % Total sectors recorded (95)   
  
 Water distribution 21 22,11%     
 Waste water and sewage processing 7 7,37%   
  
 Waste treatment 7 7,37%   
  
 Energy or heating services 5 5,26%   
  
 Transport (railway, tramway, bus, 
automated systems, cable) 15 15,79%   
  
 Port services 2 2,11%   
  
 Airport services 2 2,11%   
  
 Postal services 0 0,00%   
  
 
 55 Education (administration of schools, 
specialised education, training or 
catering) 3 3,16%   
  
 Health services 1 1,05%   
  
 Social services (nurseries, 
employment coaching, care of the 
elderly) 3 3,16%   
  
 Motorway operation 10 10,53%   
  
 Sports and leisure facilities 
(administration of sports halls, library 
services) 3 3,16%   
  
 Catering services 2 2,11%   
  
 Car parks 5 5,26%   
  
 Judiciary systems (administration of 
courts or prisons) 0 0,00%   
  
 Research and laboratory services 0 0,00%   
  
 Other (please specify) 8 8,42%  94   
           
  
 8bis.Please give your assessment of the services provided by concession-holders in the 
sector you have chosen in the preceding question.   
  
   Number of 
requested 
records (95) - those who 
answered by (*) 
to Q 7 % Total requested records(95)   
  
 Both the price and the quality of the 
service are acceptable 55,00 57,89%   
  
 The quality of the service is 
insufficient but the price is 
acceptable 6,00 6,32%   
  
 The quality of the service is good but 
the price is too high 10,00 10,53%   
  
 I am dissatisfied with both the price 
and the quality of the service 7,00 7,37%   
  
 Don’t know 17,00 17,89%  95   
         
 8ter.In your opinion what could be the main reasons for the low quality or high price of the 
services provided by concession-holders in the chosen sector? Please rank them in decreasing 
order of importance.  
 Requested records (23) - 
those who are 
dissatisfied with either 
the quality, the price or 
both (see answers to Q 
8bis) Very 
important 
 
% Total 
records (23) Important 
 
% Total 
records (23)Little 
important
 
% Total 
records 
(23) Not 
important 
 
% Total 
records 
(23) Don't know 
 
% Total 
records (23)  
 Insufficient supervision of 
the concession-holder's 
activities by the public 
authorities 43,48% 17,39% 17,39%  17,39% 4,35%  
 Lack of investment in 
infrastructure by the concession-holders 30,43% 17,39% 39,13%  13,04% 0,00%  
 Absence of competition 34,78%  21,74% 8,70% 34,78% 0,00%  
 
 56 Other (Please specify) 21,74% 0,00% 0,00% 8,70% 13,04%  
         
  9. Please indicate a second sector in which you also have experience in dealing with 
services concession in your Member State.     
    Number of 
requested 
records % Requested 
records(95) - 
those who answered by 
(*) to Q 7 % of 
total number 
records(185)       
  Water distribution 7 9,33% 3,78%     
  Waste water and sewage processing 12 16,00% 6,49%     
  Waste treatment 5 6,67% 2,70%     
  Energy or heating services 3 4,00% 1,62%     
  Transport (railway, tramway, bus, 
automated systems, cable) 11 14,67% 5,95%     
  Port services 2 2,67% 1,08%     
  Airport services 4 5,33% 2,16%     
  Postal services 1 1,33% 0,54%     
  Education (administration of schools, 
specialised education, training or 
catering) 1 1,33% 0,54%     
  Health services 1 1,33% 0,54%     
  Social services (nurseries, 
employment coaching, care of the 
elderly) 1 1,33% 0,54%     
  Motorway operation 11 14,67% 5,95%     
  Sports and leisure facilities 
(administration of sports halls, library 
services) 2 2,67% 1,08%     
  Catering services 2 2,67% 1,08%     
  Car parks 7 9,33% 3,78%     
  Judiciary systems (administration of 
courts or prisons) 0 0,00% 0,00%     
  Research and laboratory services 0 0,00% 0,00%     
  Other (please specify) 5 6,67% 2,70%  75   
              
  9bis. Please give your assessment of the services provided by concession-holders in the 
sector you have chosen in the preceding question.     
    Number of 
requested records % Requested 
records(81)      % of 
total number records(185)       
  Both the price and the quality of the 
service are acceptable 45 55,56% 24,32%     
  The quality of the service is 
insufficient but the price is 
acceptable 4 4,94% 2,16%     
  The quality of the service is good but 
the price is too high 5 6,17% 2,70%     
  I am dissatisfied with both the price 
and the quality of the service 13 16,05% 7,03%     
  Don’t know 14 17,28% 7,57%  81   
 
 57              
  9ter.In your opinion what could be the main reasons for the low quality or high price of the services 
provided by concession-holders in the chosen sector? Please rank them in decreasing order of 
importance.  
  Requested records (22) 
- those who are 
dissatisfied with either 
the quality, the price or 
both (see answers to Q 
9bis) Very important 
 
% requested (22) Important 
 
% 
requested 
(22) Little 
important 
 
% requested 
(22) Not 
important 
 
% 
requested 
(22) Don't know 
 
% requested 
(22)  
  Insufficient supervision 
of the concession-holder's activities by the 
public authorities 54,55% 22,73% 9,09%  13,64% 0,00%  
  Lack of investment in 
infrastructure by the 
concession-holders 50,00% 13,64% 22,73%  9,09% 4,55%  
  Absence of competition 45, 45% 18,18% 22,73% 13,64% 0,00%  
  Other (Please specify) 18, 18% 0,00% 0,00% 4,55% 13,64%  
         
 10. Do you think that opting for a concession rather than direct provision by public 
authorities could help to secure/speed up new investment in public 
infrastructure/services?     
   Number of 
records (105) - 
in principle, 
those who answered by (*) 
to Q 7 % total records(105)          
 Yes 57 54,3%     
 No 34 32,4%     
 Don’t know 14 13,3%  105   
             
 10bis. Please choose one or more of the following reasons:     
   Number of 
requested 
records (57) - Those who 
answered 'Yes' 
to Q 10 % Requested 
records(113)     % of 
total number 
records(185)       
 Concessions provide an additional 
source of capital and relieve immediate pressure on public 
finances by spreading the cost of 
financing infrastructure over the lifetime of the asset 42 37,17%       (22.7%)        
 Better risk-sharing between the 
public and private sectors permits 
more efficient risk management and 
reduces the overall cost of projects 29 25,66%       (15.7%)        
 The private sector has a better track 
record of on-time and on-budget 
delivery of investments than the public sector 25 22,12%       (13.5%)        
 
 58 The private sector is in a better 
position to make investments to 
boost sustainability and innovation to meet the socio-economic challenges 
facing society. 17 15,04%        (9.2%)       113   
         
 11.Imagine your local government is awarding a services concession for waste management in your district. 
In your view, to what extent are the following aspe cts of the service important (please rank them from 1 
(very important) to 6 (not important))?  
 % Requested 
records (134) - those who 
answered by (*) or 
(**) to Q 7 1 
(Very 
important) 2 3 4 5 6 
(Not 
important) Don't 
know/ 
No 
answer 
 Price 38,81% 34,33% 17,91% 2,99% 0,75% 2,24% 2,99% 
 Quality 70,15% 21,64% 4,48%  0,75% 0,75% 0,75% 1,49% 
 Continuity in 
provision of 
services 49,25% 24,63% 10,45% 5,22%  2,99% 2,99% 4,48% 
 Origin of the 
provider 10,45% 8,21% 10,45% 9,70%  8,96% 45,52% 6,72% 
 Creating local 
employment 23,88% 29,10% 19,40% 9,70%  5,97% 5,97% 5,97% 
 Meeting 
Environmental standards 53,73% 20,90% 11,19% 6,72%  2,99% 0,75% 3,73% 
         
         
 III — ASSESSMENT OF PROCEDURES FOR AWARDING CONCESSIONS     
         
 12. Have you heard of service concessions bein g awarded in your country or in other EU 
Member States without any publication/transparency?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 No 116      (62.7%)            (62.7%)        
 Yes 69      (37.3%)            (37.3%)     185   
             
 12bis. Please indicate the sector(s) concerned:     
   Number of 
requested records % Requested 
records(69)      % of 
total number records(185)       
 Water distribution 27      (39.1%)            (14.6%)        
 Waste water and sewage processing 15      (21.7%)             (8.1%)          
 Waste treatment 28      (40.6%)            (15.1%)        
 Energy or heating services 14      (20.3%)             (7.6%)          
 Transport (railway, tramway, bus, 
automated systems, cable) 31      (44.9%)            (16.8%)        
 Port services 8      (11.6%)             (4.3%)          
 Airport services 10      (14.5%)             (5.4%)          
 Postal services 4      (5.8%)             (2.2%)          
 
 59 Education (administration of schools, 
specialised education, training or 
catering) 6      (8.7%)             (3.2%)          
 Health services 8      (11.6%)             (4.3%)          
 Social services (nurseries, 
employment coaching, care of the 
elderly) 6      (8.7%)             (3.2%)          
 Motorway operation 13      (18.8%)             (7%)          
 Sports and leisure facilities 
(administration of sports halls, library 
services) 8      (11.6%)             (4.3%)          
 Catering services 5      (7.2%)             (2.7%)          
 Car parks 15      (21.7%)             (8.1%)          
 Judiciary systems (administration of 
courts or prisons) 1      (1.4%)             (0.5%)          
 Research and laboratory services 1      (1.4%)             (0.5%)          
 Other (please specify) 1      (1.4%)             (0.5%)       201   
             
 12ter. If possible, could you al so indicate the value or (i f many) the average value of 
the contract(s) concerned?     
   Number of 
requested records % Requested 
records(69)      % of 
total number records(185)       
 < € 200 000 2      (2.9%)             (1.1%)          
 € 200 000 – € 799 999 2      (2.9%)             (1.1%)          
 € 800 000 – € 2 499 999 1      (1.4%)             (0.5%)          
 € 2 500 000 – € 4 999 999 0        (0%)        (0%)     
 ≥ € 5 000 000 22      (31.9%)            (11.9%)        
 Don't know 42      (60.9%)            (22.7%)     69   
             
 13. At what level are the services conces sions normally published in your country?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 Local 22      (11.9%)            (11.9%)        
 National 78      (42.2%)            (42.2%)        
 International 64      (34.6%)            (34.6%)        
 They are never published 5      (2.7%)             (2.7%)          
 Don’t know 16      (8.6%)             (8.6%)       185   
             
 14. Have you heard of any public contract s which have been  awarded as services 
concessions or works concessions in your country or in other EU Member States?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 No 50      (27%)             (27%)          
 Yes 85      (45.9%)            (45.9%)        
 Don’t know: it is difficult to 
distinguish between public contracts 
and concessions 50      (27%)             (27%)       185   
 
 60             
 14bis. Please indicate the sector(s) concerned:     
   Number of 
requested 
records % Requested 
records(85)      % of 
total number 
records(185)       
 Water distribution 46      (54.1%)            (24.9%)        
 Waste water and sewage processing 39      (45.9%)            (21.1%)        
 Waste treatment 38      (44.7%)             (20.5%)        
 Energy or heating services 36      (42.4%)            (19.5%)        
 Transport (railway, tramway, bus, 
automated systems, cable) 47      (55.3%)            (25.4%)        
 Port services 20      (23.5%)             (10.8%)        
 Airport services 27      (31.8%)            (14.6%)        
 Postal services 12      (14.1%)             (6.5%)          
 Education (administration of schools, 
specialised education, training or 
catering) 11      (12.9%)             (5.9%)          
 Health services 21      (24.7%)            (11.4%)        
 Social services (nurseries, 
employment coaching, care of the 
elderly) 8      (9.4%)             (4.3%)          
 Motorway operation 40      (47.1%)            (21.6%)        
 Sports and leisure facilities 
(administration of sports halls, library services) 13      (15.3%)             (7%)          
 Catering services 17      (20%)             (9.2%)          
 Car parks 30      (35.3%)            (16.2%)        
 Judiciary systems (administration of 
courts or prisons) 8      (9.4%)             (4.3%)          
 Research and laboratory services 4      (4.7%)             (2.2%)          
 Other (please specify) 3      (3.5%)             (1.6%)       420   
             
 14ter. If possible, could you al so indicate the value or (i f many) the average value of 
the contract(s) concerned?     
   Number of 
requested 
records % Requested 
records(85)      % of 
total number 
records(185)       
 < € 200 000 3      (3.5%)             (1.6%)          
 € 200 000 – € 799 999 2      (2.4%)             (1.1%)          
 € 800 000 – € 2 499 999 5      (5.9%)             (2.7%)          
 € 2 500 000 – € 4 999 999 3      (3.5%)             (1.6%)          
 ≥ € 5 000 000 40      (47.1%)            (21.6%)        
 Don't know 32      (37.6%)            (17.3%)     85   
             
 
15. In your view, do the national rules/prac tices on publication of service concessions 
in your country ensure that sufficient information is provided to allow all interested EU 
economic operators to participate in the award procedure?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 
 61 Yes 130      (70.3%)            (70.3%)        
 No 31      (16.8%)            (16.8%)        
 Don’t know 24      (13%)             (13%)       185   
             
 16. In your view, are the existing national rules/practices in your  country adequate to 
ensure equal treatment of EU economic operators in procedures to award works 
concessions and services concessions?     
         
 (a) Services concessions     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 Yes 135      (73%)             (73%)          
 No 34      (18.4%)            (18.4%)        
 Don’t know 16      (8.6%)             (8.6%)       185   
             
 (b) Works concessions     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 Yes 144      (77.8%)            (77.8%)        
 No 20      (10.8%)            (10.8%)        
 Don’t know 21      (11.4%)            (11.4%)     185   
             
 17. Do you believe that diverging national  legal provisions and practices governing 
award of works concessions and services concessions are an obstacle to cross-border 
economic activity?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 No 89      (48.1%)            (48.1%)        
 Yes 60      (32.4%)            (32.4%)        
 Don’t know 36      (19.5%)            (19.5%)     185   
             
 18. In your view, do national rules in yo ur country offer effective remedies to all 
parties wishing to challenge decisions awarding service concessions?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 No 46      (24.9%)             (24.9%)        
 Yes 104      (56.2%)            (56.2%)        
 Don’t know 35      (18.9%)            (18.9%)     185   
             
         
 IV — IMPACT OF POSSIBLE EU LEGISLATION ON CONCESSIONS     
         
 19. Do you agree that publication of notices on the intention to award services 
concessions in the Official Journal of the European Union would help to increase 
transparency?     
 
 62   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 No 60      (32.4%)            (32.4%)        
 Yes 114      (61.6%)            (61.6%)        
 Don’t know 11      (5.9%)             (5.9%)       185   
             
 20. What effect could EU-wide competition for services concessions have on the quality 
and price of services you use?     
         
 A) On price:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 72      (38.9%)            (38.9%)        
 Decrease 60      (32.4%)            (32.4%)        
 Increase 29      (15.7%)            (15.7%)        
 Don’t know 22      (11.9%)            (11.9%)        
 Other 2      (1.1%)             (1.1%)       185   
             
 B) On quality:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 41      (22.2%)            (22.2%)        
 Deteriorate 49      (26.5%)            (26.5%)        
 Improve 67      (36.2%)            (36.2%)        
 Don’t know 26      (14.1%)            (14.1%)        
 Other 2      (1.1%)             (1.1%)       185   
             
 21. What effect could clear and appropriate EU rules of procedure on the award of 
works and services concessions have on provision of the works/services?     
             
 A) On Price:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 64      (34.6%)             (34.6%)        
 Decrease 48      (25.9%)            (25.9%)        
 Increase 31      (16.8%)            (16.8%)        
 Don’t know 41      (22.2%)            (22.2%)        
 Other 1      (0.5%)             (0.5%)       185   
             
 B) On quality:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 57      (30.8%)            (30.8%)        
 
 63 Deteriorate 34      (18.4%)            (18.4%)        
 Improve 59      (31.9%)            (31.9%)        
 Don’t know 32      (17.3%)            (17.3%)        
 Other 3      (1.6%)             (1.6%)       185   
             
 22. Overall, who will benefit most from a greater competition for the award of services concessions ? 
Please rank in decreasing order of importance from 1 to 6):  
 % Requested 
records (185) 1 
(Very 
important) 2 3 4 5 6 
(Not 
importa
nt) Don't 
know/ 
No 
answer 
 Users 31,89% 17,84%  8,65% 9,19% 4, 86% 22,16% 5,41% 
 Companies 19,46% 22,70% 20,00%  11,89% 9,73% 8,11% 8,11% 
 Employees 3,78% 9,73% 20,54%  20,00% 14,05% 27,03% 4,86% 
 Taxpayers 16,22% 18,92% 12,97% 8,65% 21,08% 16,22% 5,95% 
 Public Authorities 21,08% 20,00%  17,84% 10,27% 13, 51% 11,35% 5,95% 
 Other  4,86% 0,54% 1,62%  0,00% 0,54% 3,78% 13,51%
         
 23. Greater competition for award of serv ices concessions will allow greater and 
speedier delivery of public investment.     
   Number of 
requested records (185) % Requested 
records(185)     % of 
total number records(185)       
 Strongly agree 17      (9.2%)             (9.2%)          
 Agree 73      (39.5%)            (39.5%)        
 Disagree 47      (25.4%)            (25.4%)        
 Strongly disagree 35      (18.9%)            (18.9%)        
 Don’t know 13      (7%)             (7%)       185   
             
 24. EU legislation on services concessions ensuring Europe-wide transparency and equal 
opportunities for all EU operators would impro ve delivery of the best value-for-money.     
   Number of 
requested records (185) % Requested 
records(185)     % of 
total number records(185)       
 Strongly agree 23      (12.4%)            (12.4%)        
 Agree 63      (34.1%)            (34.1%)        
 Disagree 27      (14.6%)            (14.6%)        
 Strongly disagree 38      (20.5%)            (20.5%)        
 Don’t know 34      (18.4%)            (18.4%)     185   
             
 25. EU legislation on services concessions ensuring Europe-wide transparency and equal 
opportunities for all EU oper ators would encourage public authorities to make greater 
use of concessions to provide public services.     
   Number of 
requested 
records (185) % Requested 
records(185)     % of 
total number 
records(185)       
 Strongly agree 16      (8.6%)             (8.6%)          
 Agree 72      (38.9%)            (38.9%)        
 Disagree 37      (20%)             (20%)          
 
 64 Strongly disagree 36      (19.5%)            (19.5%)        
 Don’t know 24      (13%)             (13%)       185   
             
 26. In your opinion, would opting for concessions to provide public services rather than 
direct provision of the services by public authorities have any impact on employment 
in the sectors concerned?     
   Number of 
requested 
records (185) % Requested 
records(185)     % of 
total number 
records(185)       
 Yes 95      (51.4%)            (51.4%)        
 No 44      (23.8%)            (23.8%)        
 Don’t know 46      (24.9%)            (24.9%)     185   
             
 26bis. What impact on employment would you expect?     
   Number of 
requested 
records (95) - 
those who answered 'yes' 
to Q 26 % Requested 
records(95)      % of 
total number 
records(185)       
 The number of local jobs is likely to 
increase 39      (41.1%)            (21.1%)        
 The number of local jobs is likely to 
decrease 49      (51.6%)            (26.5%)        
 Don't know 7      (7.4%)             (3.8%)       95   
             
 26ter. What impact on working conditions would you expect?     
   Number of 
requested 
records (95) - 
those who answered 'yes' 
to Q 26 % Requested 
records(95)      % of 
total number 
records(185)       
 The conditions of local employment 
are likely to improve 53      (55.8%)            (28.6%)        
 The conditions of local employment 
are likely to deteriorate 30      (31.6%)            (16.2%)        
 Don't know 12      (12.6%)             (6.5%)       95   
             
 27. In your view, would greater competition for award of services concessions have any 
impact on employment in the sectors concerned?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 Yes 89      (48.1%)            (48.1%)        
 No 37      (20%)             (20%)          
 Don't know 59      (31.9%)            (31.9%)     185   
             
 27bis. What impact on employment would you expect?     
 
 65   Number of 
requested 
records (89) - those who 
answered 'yes' 
to Q 27 % Requested 
records(89)      % of 
total number 
records(185)       
 The number of local jobs is likely to 
increase 34      (38.2%)            (18.4%)        
 The number of local jobs is likely to 
decrease 51      (57.3%)            (27.6%)        
 Don't know 4      (4.5%)             (2.2%)       89   
             
 27ter. What impact on working conditions would you expect?     
   Number of 
requested 
records (89) - those who 
answered 'yes' 
to Q 27 % Requested 
records(89)      % of 
total number 
records(185)       
 The conditions of local employment 
are likely to improve 45      (50.6%)            (24.3%)        
 The conditions of local employment 
are likely to deteriorate 34      (38.2%)            (18.4%)        
 Don't know 10      (11.2%)             (5.4%)       89   
             
 28. Many services of general interest (t his means ‘market and non-market services 
which the public authorities class as being of  general interest and subject to specific 
public-service obligations’, see the Green Paper on services of general interest 
(COM(2003) 270 final, paragraph 16) are pres ently provided by means of a concession. 
Do you expect greater competition for award of concessions to have any impact on 
access to these services?     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 Yes 69      (37.3%)            (37.3%)        
 No 70      (37.8%)            (37.8%)        
 Don’t know 46      (24.9%)            (24.9%)     185   
             
 28bis. What impact would you expect?     
   Number of 
requested 
records % Requested 
records(69)      % of 
total number 
records(185)       
 Accessibility will improve 58      (84.1%)            (31.4%)        
 Accessibility will deteriorate 8      (11.6%)             (4.3%)          
 Don't know 3      (4.3%)             (1.6%)       69   
             
 29. What effect could clear and detailed EU  rules on award of concessions have on 
provision of social services (such as education or health services)?     
         
 On price:     
 
 66   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 42      (22.7%)            (22.7%)        
 Decrease 48      (25.9%)            (25.9%)        
 Increase 33      (17.8%)            (17.8%)        
 Don’t know 62      (33.5%)            (33.5%)     185   
             
 On quality:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 37      (20%)             (20%)          
 Deterioration 36      (19.5%)            (19.5%)        
 Improvement 59      (31.9%)             (31.9%)        
 Don’t know 53      (28.6%)            (28.6%)     185   
             
 On accessibility:     
   Number of 
requested 
records % Requested 
records(185)     % of 
total number 
records(185)       
 None 39      (21.1%)            (21.1%)        
 Deterioration 26      (14.1%)            (14.1%)        
 Improvement 62      (33.5%)            (33.5%)        
 Don’t know 58      (31.4%)            (31.4%)     185   
 
 
 
 67 
Annex I B  
 
Report on the targeted public consultation on concessions held between 5 August and 30 
September 2010  
 
 
Between 5 August and 30 September 2010 the Commission services run a consultation 
addressed to specific groups of stakeholders  – the business community, the contracting 
entities and the social partners. In essence, it  aimed to learn about the experience of these 
groups on concessions, to hear their views on the operation of the present rules and finally to 
gather suggestions for their future improvement . The replies provided will be published on the 
Commission's website at http://ec.europa.eu/internal_marke t/consultations/2010/concessions_en.htm
. The objective of 
this report is to provide the outcome for each of these consultations.    A) The consultation of the business community
 
 
It is noted that 62 stak eholders provided their input to this  consultation. In particular, 14 came 
from a private company, 3 from a mixed capital  company, 11 from a public company and 34 
provided their reply on behalf of the industry or a professiona l association. Only 7 replies 
came from SME's.   The sectors most represented were transport, water distribution and wa ste water and sewage 
processing, waste treatment and energy or heating services. 
 Replies originated from particip ants located in 20 different Member States. Germany, France 
and Belgium were, by far, the Member States submitting  the highest number of replies (45,1%, 33,8% and 19,3% of replies respectively). 
 Out of those 62 respondents who make up this stakeholders group, 36 replied to the question 
on whether their company curren tly holds a concession, with 30 (83%) of those confirming , 
while the other 6 (17%) indicati ng the contrary. In addition, 33 respondents answered to the 
question on whether they have participated in a tendering procedure in a Member State other 
than the one they are established. Out of those, 15 (46%) answered positively and 18 negatively (54%). These figures show that a subs tantial part of the resp ondents have first hand 
knowledge of concessions and of tendering procedures.   Concessions by number and value were consider ed to have a substantial economic importance 
in sectors such as energy, transport and port services in BE, DE, DK, EL, ES, FR, HU, IT, 
LV, NL, PL  and the UK. In addition concessions  also have a significant economic weight in 
water distribution and waste water treatment s ectors, waste treatment and motorways in ES, 
FR and DE.  The majority of respondents considered that the case law of the CJEU on definition and award 
of concessions provided sufficient clarificatio n while 19% considered otherwise. On the 
guidance provided by the Commission on the de finition and applica tion of the Treaty 
principles 48% of the respondents c onsidered it to be insufficient. 
 
 
 68Furthermore, 15 respondents indicated that they are aware of entry barriers to the concession 
markets in the Member States, while 22 indicated that they ar e not. Hence out of the 37 who 
replied to this question, a substantial propo rtion amounting to 40,5% indicated that entry 
barriers do exist.   With regard to the advertisement practices for the award of concessions, and in particular the 
level at which publication usually takes place, the results of the group reveal that about half of 
the publications merely take place at a local or  regional level, while only one quarter takes 
place at international level.  Concerning the question on the possible ta king place of direct awards, 43 respondents 
answered to that. 26 (60%) of t hose indicated that they were not aware of any such practices 
while 17 (40%) indicated that they were ac tually well aware of their existence.  
 In relation to the question whether the advertisem ent practice of service concessions is usually 
fair and transparent, out of th e 36 respondents who answered to th is, 8 (22%) indicated that it 
is not, while 28 respondents (78%) consider that  it is. Nevertheless, these 28 constitute merely 
45% of all the respondents in the group, which suggests that less than half of the group 
considers the advertisement practices to be fair. In addition, with regard to the question of 
whether the information is easily available to vigilant non-national op erators, the results 
revealed that only in 5 Member States th is was the case (BE, DE, FR, PT, SE) which 
corresponds to 19% of a ll the Member States. By  contrast, for the large majority of Member 
States (18 – 67% thereof) the answer was negati ve suggesting that overall, at EU wide level, 
the information on concessions is not easil y available to non-national operators.  
 Furthermore, 9 out of the 40 respondents who answered to the relevant question (23%) consider the diversity of national rules and pr actices to be an obstacle to the cross border 
provision of services. Then, 4 out  of 15 (21%) consider that this  generates additional costs, 
while 3 out of 13 (19%) consider that this generates administrative burden.  
 Moreover, 18 respondents (29% of the group), indi cated that in the tendering procedures that 
they have participated in, ther e were also participants coming from other Member States. This 
constitutes evidence that there is alrea dy in place some cross border activity.  
 On the procedures used for the award of con cessions it seems that the negotiated procedure 
with publication (but not necessar ily the one set out in the Public Procurement Directives) is 
the most commonly used (28 respondents from 8 Member States). It is followed by the open 
procedure (6 respondents from 4 Member States ) and the restricted procedure (/ respondents 
from 3 member States) and a sui generis  procedure (5 responents from 3 member States). In 
only one Member State, Germany, is the ne gotiated procedure wit hout publication of a 
contract notice used (8 respondents).  With reference to the most important features  of fair and transparent tender procedures, 
publication was considered the most importa nt (14 replies), followed by negotiation (11 
replies) and selection and awar d criteria (10 replies each). 
 In relation to the question of whether the awarding procedures  in the Member States are 
usually fair and transparent, the replies revealed  that in 9 Member States that was the case 
(including DE and FR), which corresponds to 33% of all the Member States. 35 respondents 
 
 69in the group (62% thereof) did not answ er this question. For 17 Member States, no 
information was received on this point.  On the key features of fair and transparent procedures missing respondents had participated 
the most common referred one was selection criter ia (8 replies originating from DE, ES, FR, 
IT, PT, SE and UK). In one case, UK, the mi ssing key feature concer ned award criteria.  
 Concerning the averag e duration of services concession s the longest duration has been 
reported in Germany (12 respondents pointing to concessions lasting 20 years or more and 8 
indicating concessions of 11 up to 10 years). In France the duration of concessions is evenly 
spread between concessions lasting up to 10 ye ars and concessions of 20 years or more. Most 
respondents noted the positive impact of a long duration (enough to recover the initial 
investment) on competition for the contract and on costs. In one case (DE)  the long duration 
was considered to have a negative impact  making it difficult to enter the market. 
 With regard to the question concerning the effectiveness of the remedies system in the Member States, the consultation revealed a posi tive picture in relation to 6 Member States 
(including DE and FR), which corresponds to 22% of all the Member States. Only in one 
Member State, Germany, some respondents consider ed the remedies system to be ineffective. 
 The consultation also revealed that 38 o out of the 46 respo ndents (82,6%) who answered to 
the question consider that they  find it not difficult to distingu ish between public contracts and 
concessions while 8 (17,3%) considered the o pposite. In addition, 25 out of the 62 people 
(40%) in this stakeholders group  indicated that there are indeed shortcomings with the current 
definition of concessions provided in EU law, while another 11 people in the group (18%) indicated that they are fine with the definition but want it to be improved.  
 The issue of public contracts being misattributed as concessions in order to elude detailed EU 
provisions has been identified by the Commission services as  one of the most burning 
problems which have to be addressed. The cons ultation revealed that 3 out of 33 respondents 
(9%) are actually aware of the ex istence of this phenomenon.  
 On the existence of practices or market structures reducing competition between tenderers most respondents (21) were not aware of such  practices/structures wh ile 3 declared to be 
aware of those cases: two of collusion betwee n established organisations in Germany and 
France  and one of existing oligopolies in Germany.   Concerning the operation of the current rules on works concessi ons, the consultation revealed 
very positive results. In particular, with regard  to the provision on mandatory publication, 20 
out of 21 respondents (95%) indica ted that this provide s a sufficient degree  of transparency 
and equal treatment, while 17 out of 18 (94%) consider that it provides legal clarity. 
Concerning the provisions on time limits and add itional works, 16 respondents  consider that 
these provide a sufficient degree of transparen cy and equal treatment with none considering 
otherwise, while 14 respondents  consider th at these provide legal clarity with none 
considering otherwise. Finally, with regard to the provision on  subcontracting, 15 respondents  
consider that this provides a sufficient degree of transparency and equal treatment with none 
considering otherwise, while 13 out of 14 responde nts  (93%) consider that this provides legal 
clarity. This confirms the positive assessment made by this group of the present rules for awarding works concessions.   
 
 70With regard to the question on the expected  impact of new legislation providing for 
compulsory advertisement of service concessions at the European level, it should be pointed 
out that an overall negative impact is expect ed in only 1 Member St ate (DE). In another 
Member State (FR) no impact is expected, while w ith regard to another 6 Member States (ES, 
IT, NL, PT, SK, UK) a positive overall impact is expected.   With regard to the ques tion on possible shifts  on services di rectly provided by contracting 
authorities towards concessions-based provision of services 2 respondents considered that 
there would be a shift on the short term, 9 on the medium term and 3 on the long term. By contrast, only 6 respondents considered as likely  the opposite shift (from concessions to direct 
provision of services) out of which 4 on the medium term. 
 Concerning the question on whether the respondents  expect that such a legislative provision 
would result in new entrants into the market, half  of those who replied to this (18 out of 36) 
have answered positively. Out of the 18 responding positively, 16 considered that the new entrants would be non-domestic companies, 10 domestic companies in new business areas, 13 
joint ventures and 2 SME's.  
Concerning the possible legislative content, the majority of those who replied to the relevant 
questions indicated that they are clearly in favour of compul sory publication of contract 
notices in the Official Journal of the EU (20 out  of 37, that is 54% thereof), the possibility to 
directly award additional services to the origin al concession holder (20 out of 32, that is 63% 
thereof) and the obligation to announce qualifi cation criteria (20 out of 34, that is 59% 
thereof).   In relation to the other possible provisions mentioned in the consultation, there appears to be 
no overall  support in this group.  
 Concerning , the obligation to respect minimum deadlines, 12 out of the 32 respondents who 
answered this (38% thereof) i ndicated their support. In addition, with regard to the obligation 
of the concession holder to re spect the principle of non-disc rimination while selecting sub-
contractors, 6 out of the 26 peopl e who replied to this (23% ther eof) indicated their support.  
 Similarly, with regard to the requirement to award a minimum of 30% of sub-contracts to 
third parties or to request the concession holder to specify the percentage  of services to be 
sub-contracted, 6 out of the 31 respondents who an swered this (20% ther eof) indicated their 
support.   Concerning the application of the Remedi es Directive 2007/66/EC, 11 out of the 28 
respondents who answered this (40% thereof) indicated their support. Similarly, concerning 
the possibility to participate in  a tendering procedure, in part icular by relying on the standing 
of other entities, 11 out of the 26 people who re plied to this (42% thereof) indicated their 
support. In relation to the po ssibility to restrict the aw ard criteria to price and the 
economically most advantageous tender, 7 out of the 37 people who replied to this (19% 
thereof) indicated their support.   With regard to the provision on the non-discrimina tory use of technical specifications, 12 out 
of the 25 respondents who answered to this (4 8% thereof) indicated their support. Finally, 
with regard to a provision limiting the choice of  procedures to the ones currently available for 
 
 71public contracts, 13 out of the 31 people who re plied to this (42%) also indicated their 
support.   B) The consultation of the contracting authorities
 
 It is noted that 49 stakeholders  from 14 different Member States provided their input to this 
consultation. The highest number of respondent s originated from BG  and DE (8 each) 
followed closely by the UK (7) and ES (6). 10 replies came from a state authority, 5 from a 
regional authority, 20 from  a local authority, 4 provided their reply on behalf of an association 
of regional or local authorit ies, 1 came from a body governed by public law, 4 came from 
associations of bodies governed by public law and 1 from another contracting entity within 
the meaning of Directive 2004/17/EC. They were re sponsible in particular  for transport (11), 
sports and leisure facilities (11), health serv ices (10) waste treatment (9) energy or heating 
services(9) and road and motorway operation (9).  Out of the 49 respondents who make up this stak eholders group, 42 replied to the question on 
whether they have awarded a c oncession within the last 10 years, with 32 (76%) of them 
indicating that they actually have, while th e other 10 (24%) indicat ing the contrary. In 
addition, 43 respondents who replied to the qu estion on whether they consider awarding a 
concession in the future. Out of those, 32 (74%) answered positively and 11 negatively (26%). These figures show that a substantial part of the respondents have first hand knowledge of 
concessions and of tendering procedures and that they intend to use them in the future. The 
highest number of concessions awarded by this gr oup of stakeholders referred to transport (8) 
road and motorway operation (7), port services (6), health services (6) and energy and heating 
services (6). It interesting to note that conc essions were used for the construction of an 
artificial lake, the operation of an Official Journal, the operati on of information systems and a 
visa information service.    With reference to the economic  importance of concessions th ese were consid ered to be 
unimportant in Bulgaria and somewhat important  in the Czech Republic (12 contracts related 
to small-scale regional projects  on the supply of heat and water management). By contrast, in 
Portugal, concessions are omnipr esent in all sectors the most important being the motorway 
sector (investment realized of € 13288 million). In most of the States of the respondents, 
including Bulgaria, concessions were cons idered to have an increase potential. 
 The consultation further revealed that 12 out of  the 30 respondents (40% ) who replied to the 
question consider that they find it actually diffi cult to distinguish between public contracts 
and concessions. The main reason for this lies on lack of clarity on the types of risks to be 
taken into account on the definition of operating risk (10 replies) and on the amount of consideration to be paid by the c ontracting authority (7 replies). 
  In addition, 4 people in the gr oup (8%) are completely satisfied with the definition, 13 out of 
the 49 people (26,5%) indicated that they are fi ne with the definition but want it to be 
improved while 2   in this stakeholders group i ndicated that there are shortcomings with the 
current definition of concessi ons provided in EU law.  
 With regard to the procedure which is usuall y followed for the award of service concessions 
and in particular with reference to the level at which publication takes place, it appears that 
many publications take place only at national leve l, while a substantial number of those does 
not appear to take place at the international level at all.  
 
 72 
In relation to the question of whether in the pr ocedures launched for the award of concessions 
there were any tenderers coming from other Me mber States, answers were provided with 
regard to 4 Member States. Negative answers were given for tendering procedures carried out 
in BG and IE, while positive for those carried out in PT and the UK. Hence for half of the Member States where input was provided, the re plies confirmed the existence of cross-border 
tendering. In addition, concerning the question of whether the respondents have awarded a 
concession to a tenderer from another Member State, a negative answer was received for 3 
Member States (BG, IE, UK) while there was one positive answer (PT).   Concerning the question of wh ich are the most important reasons favouring the direct 
provision of a service, the most frequent reas on provided (8 replies) related to the direct 
control of the service provision. Other grounds included, the tim e and effort required for local 
and regional authorities to familiarise themse lves with the complex procurement rules (2 
replies) and the lower costs usually involved (2  replies). Conversely, with regard to the 
question of which are the most important reas ons favouring the use of concessions, the most 
frequent reason provided (7 replies)  related to the transfer of the risk to the concession holder. 
Other grounds included the privat e funding involved (4 replies), the know-how of the private 
sector (4 replies) and the need to provide th e service in a cost-effective manner (5 replies). 
Concerning the follow-up question of how in th e present circumstances the above reasons will 
play into the future decision of the stakeholders  on whether to opt for the direct provision of a 
service or for the award of a service concession contract, out of the 8 replies received, 3  
indicated that they will opt for concessions while the remaining 5  indicated that they will opt for direct provision. This suggest s that a substantial proporti on of contracting authorities 
would in the present circumstances  probably opt for the former.  
 In addition, with regard to th e operation of the current rules on works concessions, as in the 
case of the business community c onsultation, this stakeholders ' consultation also revealed 
very positive results. In part icular, with regard to the pr ovision on publication, 19 respondents 
indicated that this pr ovides a sufficient degree of transpar ency and equal treatment with none 
considering otherwise, while 17 out of 18 ( 94%) consider that it provides legal clarity. 
Concerning the provisions on time limits, addi tional works and subcontracting, 17 people 
consider that these provide a sufficient degree of transparency and equal treatment with none 
considering otherwise, while 15  people out of 16 ( 94%) consider that these provide legal 
clarity. This confirms the posit ive assessment which has been made by this group as well, of 
the present rules on works concessions.   With regard to the question on the expected  impact of new legislation providing for 
compulsory advertisement of service concessions at the European level, it should be pointed 
out that as in the case of the business communi ty consultation, an overall negative impact is 
expected in only 1 Member State (DE). By contrast, it is noted th at with regard to another 6 
Member States (BG, ES, IE, PT, SK, UK)  a positive overall impact is expected.  
 Concerning the question on whether the respondents  expect that such a legislative provision 
would result in new entrants into the market, 69% of those who replied to this question (18 
out of 26) have answered positively. This s uggests that as in the case of the business 
community, the contracting author ities group is also quite optimis tic that such a legislative 
provision will result in the opening of the concessions market to competition.   
 
 73In particular, the majority of  those who replied to the ques tions on the possible legislative 
content indicated that they are clearly in favour of the following: the compulsory publication 
of contract notices in the Offi cial Journal of the EU (18 out of 32, that is 56% thereof), the 
obligation to respect minimal deadlines (18 out of  30, that is 60% thereof), the obligation for a 
concession holder to respect the principle of non-discrimination while selecting holders of 
subcontracts 17 out of 31, that is 55% thereof),  the possibility to directly award additional 
services to the original con cession holder (17 out of 27, that  is 63%), the obligation to 
announce qualification criteria (19 ou t of 33, that is 58% thereof), the possibility to participate 
in a tendering procedure in particular by relying on the standing of other entities (15 out of 29, 
that is 52% thereof), the possibi lity to restrict the award criteria to price and the economically 
most advantageous tender (15 out of 27 people, that is 56% thereof), and the provisions on the 
non- discriminatory use of tec hnical specifications (14 out of  25, that is 56% thereof).  
 In relation to the other possible provisions mentioned in the consultation, there appears to be 
no overall  support in this group.  
 In particular, with regard to the requirement to award a minimum of 30 % of sub-contracts to 
third parties or to request the concession holder to specify the percentage  of services to be 
sub-contracted, 9 out of the 36  people who replied to this (3 5% thereof) indicated their 
support. Similarly, concerning the application of the Remedi es Directive 2007/66/EC, 14 out 
of the 29 people who replied to this (48% thereo f) also indicated thei r support. Finally, with 
regard to a provision limiting th e choice of procedur es to the ones currently available for 
public contracts, 11 out of the 27 people who replied to this (41%) also provided their 
support.  With regard to the obligation of the concession holder to respect the principle of non-discrimination while selecting sub-contractor s , 17 out of 31 people in the contracting 
authorities' consultation provided their support.With rega rd to the obligation of the concession 
holder to respect the principle of  non-discrimination while selec ting sub-contractors , 9 out of 
26 people in the contracting authorities' cons ultation provided their support. Finally, with 
regard to the requirement to award a minimum of  30% of sub-contracts to  third parties or to 
request the concession holder to specify the percentage of servi ces to be sub-contracted 15 out 
of 27 people in the contracting authoritie s' consultation provided their support.  
  C) The consultation of social part ners, civil society and stakeholders
 
 There was a very small number of replies re ceived, and even amongst those there was very 
limited information provided. Only 12 social pa rtners participated in the consultation by 
sending their contributions. In pa rticular, 4 replies came from associations of employers, 3 
from trade unions or associations of trade unions, 2 from NGOs and one from a committee of 
employees (in an undertaking). In one reply the type of organisa tion was not specified. 
 Out of those 12 respondents, 5 (4 2 %) replied to the question on whether they were aware of 
service concessions awarded to foreign companies and they all indicated that they were aware 
of such awards, in their respective sectors.  Two respondents (17 %) reported that, in the sectors they we re familiar with, companies 
could easily secure the renewal of concession contr acts. In addition, with regard to the 
consequences of non renewal or failure to s ecure a new concession contract, 3 respondents 
 
 74answered the question, and amongs t those 1 indicated that the non-renewal caused job losses, 
whereas 2 replied that there were no job losses related to non-renewal, because contracts have 
"social clauses" obliging the ne w concessionaire to take on the employees of the former 
concessionaire.  Concerning the question on the type of labour co ntracts most prevalen t in concession holding 
companies, 4 (33%) respondents rep lied, all of them i ndicating that both in services provided 
on the basis of concessions as well  as in services directly prov ided by public authorities there 
is a predominance of permanent jobs or fixed- term contracts. Two respondents added that in 
the case of services provided on the basis of concessions there are also temporary agents and 
part time contracts. In relation to the qu estion concerning the ty pes of professional 
qualifications in companies holding concession s and in services directly provided by the 
public authority, 5 (42%) respondents replied; 4 of them indicating that in both cases there 
was a predominance of specialized employees, while  1 respondent pointed out that in the case 
of companies holding concessions there was a prevalence of highly specialised workers. 
 Concerning the operation of the current rules on works concessi ons, the consultation revealed 
that 3 out of 4 respondents who replied to the relevant questi on (75%) consider ed that these 
rules had a positive impact on the degree of transp arency, equal treatment and legal clarity, as 
well as on quality and price. Only 1 respondent  indicated that these rules had a negative 
impact, while 2 respondents indi cated that there had been comp liance costs. In addition, 2 
respondents considered that these rules had a negative impact on the number of jobs, wage 
levels and type of contracts.  Concerning the question on the possible imp act of budget cuts on companies holding 
concessions and on public administrations, 3 (2 5%) respondents replie d. Two indicated that 
the cuts would result in a decrea se in the number of jobs and in worse working conditions for 
both companies and public administrations, while  one respondent consid ered that the cuts 
would have no impact.  In relation to the expected impact of new legislation on the choice of public authorities on whether to externalise the provi sion of services to third pa rties or not, 2 (17%) respondents 
answered. One considered that the legislati on might favour the use of  concessions, whereas 
the other respondent indicated ther e would be no impact on the se rvices directly provided by 
public authorities.  With reference to the question on the possible imp act of compulsory adve rtisement in relation 
to the renewal of concessions on incumbent ope rator, 4 (33%) respondents answered; out of 
those, 1 considered that there would be a pos itive impact on competition and prices, while the 
other 3 indicated that there w ould be a negative impact on the number of jobs and on job 
conditions.  Concerning the possible impact of compulsory advertisement of concessions on service of 
general economic interest (SGEI), 2 respondent s answered. One respondent indicated that 
there would be a positive impact on availabilit y, quality and costs, wh ile the other respondent 
considered that there would be a negative impact on quality.  In relation to the possible legislative content,  the great majority of the respondents (9 
respondents that is 75% thereof) did not reply to the questions. Those very few who replied (3 
respondents, that is 25% thereof) are in favour of the possibility to aw ard directly additional 
 
 75services to the original conce ssion holder (2 out of 3) as we ll as of the obligation, for the 
concession holder, to respect the principl e of non-discrimination while selecting sub-
contractors (2 out of 3). In  relation to the other possibl e provisions mentioned in the 
consultation, there appears to be no overall support.  In particular, with regard to the compulsory publication of a contract notice in the Official 
Journal of the EU, the obligati on to respect minimal deadlines  and the applic ation of the 
Remedies Directive, 1 respondent was in fa vour and 2 were agains t these provisions.  
 In addition, the very few who replied are in favour  of the possibility for an EU operator to 
prove it meets qualification crite ria for participation in a te ndering procedure by relying on 
the standing of other ent ities (2 replies in favour out of 3 to tal replies to the question) and of 
the provision of non discriminatory use of tec hnical specifications (one single reply to the 
question).  As it is clear from the number of replies to th e questions, the data collected cannot constitute a 
solid basis for drawing conclusions on  the position of social partners.  
 
 76Annex II — Overview of  the MS legislation 
   
 
 77   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Austria Same definition as the EU Directives 
(see §8 of BVergG 2006 of the Austrian law on public procurement). According to §11 of BVergG 
2006 a reasonable degree of publicity has to be safeguarded (insofar as it appears necessary with regard to value and subject matter of the contract and taking into account that in principle several undertakings should participate in award proceedings).  Austrian public authorities may voluntary notify to the Commission announcements relating to award of service concessions (§11 in conjunction with §49 of BVergG 2006). The direct award of a service 
concession to a specific contractor is allowed for contracts below a threshold of 100 000 Euro (§11 of BVergG 2006) Provisions of BVergG 2006 
relating to service concession contracts do not differentiate between various kinds of services. No specific provisions, only 
principles from §11 of BVergG 2006 (identical for utilities: §177 BVergG 2006): A service concession has to be basically awarded in proceedings with several undertakings. The basic freedoms of the EU and prohibition of discrimination shall be respected as well as principles of free and fair competition).  See previous cell See previous cell Not applicable 
to service concessions. Remedies against administrative decisions are available as far as / under the conditions forseen by normal administrative law. 
Belgium For works concession Article 3 (12) of 
he Act of 15-06-2006: concession de travaux publics : le contrat présentant les mêmes caractéristiques qu'un marché public de travaux, à l'exception du fait que la contrepartie des travaux consiste soit uniquement dans le droit d'exploiter l'ouvrage, soit dans ce droit assorti d'un prix (ATTENTION: NO BELGIAN RULES FOR SERVICE CONCESSIONS and NO RULES FOR WORKS CONCESSSIONS IN UTILITIES SECTOR!) Only obligation for works 
concessions: above threshold Directive: in EU OJ and national OJ. Below threshold: in national OJ  See previous cell. No rules on 
calculation of value. Services are not covered (only 
works concessions) Normal rules on technical 
specifications and selection criteria are not applicable, (except one general article on selection criteria (see Article 150 that refers to Article 58 of the Royal Decree of 15 July 2011). Not specifically provided (can be 
negotiated procedure article 154 Royal Decree 15-7-2011), but some deadlines are provided, also for below threshold concessions). Not specified in detail what 
these could be, but they should be stipulated in the contractual documents (Art. 147 and 154 Royal Decree 15-11-2011). Not applicable 
to service concessions but general system of remedies applies 
Bulgaria La Loi bulgare sur les concessions est 
entrée en vigueur le 01.07.2006.  L'article 2 de la LC définit la concession comme le droit d'exploiter un ouvrage  et/ou de fournir un service. Ce droit est attribué par le pouvoir adjudicateur au concessionnaire. La contrepartie de ce droit est l'obligation pour le concessionnaire de bâtir, gérer et entretenir en bon état l'ouvrage concédé ou de gérer le service à son propre risque.  Trois types de concessions existent en Bulgarie: travaux, services et extraction. Article 42 de la LC 
Publication des concessions de services et de travaux au JO national et inscription au Registre national des concessions. Concernant les avis des concessions de travaux, parallèlement à la publication au JO, les concessions de travaux au-dessus des seuils fixés par la Directive 2004/18/CE européenne, sont aussi publiées au JOUE.  Article 43 de la LC Après publication au JOUE, l'avis de concession est publié 
dans la presse et/ou sur 
internet.  Pas de seuil prévu 
Pas de méthode de calcul Article 4 de la LC: Les services 
d'intérêt public qui peuvent inclure certains travaux. Article 25 et 26 de la LC 
concernent la situation personnelle du candidat, habilitation à exercer l'activité professionnelle, capacité économique et financière, capacités techniques et/ou professionnelles comparables à celles de la Directive 2004/18/CE.  Article 24 de la LC: procédure 
ouverte uniquement Article 27 de la LC : "…le 
critère d'évaluation des offres est l'offre économiquement la plus avantageuse." Applicable to 
service concessions. 
 
 78   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Cyprus Law 12(1)/2006 (classical sector) 
defines a works/services concession, as a contract of the same type as a public works/services contract except for the fact that the consideration for the works/services to be carried out/provided consists either solely in the right to exploit the work or in this right together with payment (art.2).Service concessions are excluded from this Law (art.16)- Law 11(1)/2006 (utilities) provides for the same definition (art.2)Both types of concessions are expressly excluded from this Law (art.17) Law 12(1)/2006 (classical 
sector), provides for publication in the OJEU, for works concessions falling within the scope of Dir.2004/18 (art.64). On service concessions, N/A, as these are excluded from this Law (art.16)- With regard to Law 11(1)/2006 (utilities) –N/A, as both types of concessions are expressly excluded from this Law (art.17).  Law 12(1)/2006 (classical sector) 
applies only for works concessions with an estimated value above the threshold set in 2004/18. (art.64). The method for calculating the value of the works concession, is the same as the one with regard to a public works contract, namely, the total amount to be paid, as estimated in advance by the contracting authority (articles 21 and 64).On service concessions, N/A, as these are excluded from this Law (art.16)- With regard to Law 11(1)/2006 (utilities) –N/A, as both types of concessions are expressly excluded from this Law (art.17) Law 12(1)/2006 (classical 
sector)  provides with regard to works concessions, that the same types of contracts are covered, as in the case of public works contracts (art.2). On service concessions, N/A, as these are excluded from this Law (art.16)- With regard to Law 11(1)/2006 (utilities) –N/A, as both types of concessions are expressly excluded from this Law (art.17) Law 12(1)/2006 (classical 
sector) does not make any provision on the technical specifications/selection criteria to be applied for awarding a works concession – N/A. On service concessions, N/A either as these are excluded from this Law (art.16).- With regard to Law 11(1)/2006 (utilities) –N/A, as both types of concessions are expressly excluded from this Law (art.17) Law 12(1)/2006 (classical sector) 
does not make any provision on the award procedures to be followed for awarding works concessions – N/A.On service concessions, N/A, as these are excluded from this Law (art.16)- With regard to Law 11(1)/2006 (utilities) – N/A, as both types of concessions are expressly excluded from this Law (art.17) Law 12(1)/2006 (classical 
sector) does not make any provision on the award criteria for awarding works concessions – N/A.On service concessions, N/A, as these are excluded from this Law (art.16)- With regard to Law 11(1)/2006 (utilities) –N/A, as both types of concessions are expressly excluded from this Law (art.17) Not applicable: 
Law 104(1) which implemets the Directive into national  law does not cover service concessions. Only general remedies provided by Cypriot administrative law are applicable. 
Czech 
Republic There is no definition of the 
concession. The Concessions Act n. 139/2006 defines the Concession Contract in Article 16 as a contract whereby the concessionaire undertakes to provide service or perform works and the contracting authority undertakes to enable the concessionnaire to receive benefits resulting from the provision of the service or usage of the works, eventually combined with a monetary paiement. A substantial part of the risk relating to the reception of benefits should be borne by the concessionnaire.  Works concessions above EU 
thresholds: publication in the OJEU + National Information System of Public Contracts (single point of access). All other (works+service) concessions: publication in the National Information System of Public Contracts. 1. Minimum threshold is CZK 20 
mil (€ 800 000) value is estimated income of the concessionaire. 2. EU threshold for works concession is used for publication purposes (see cell C7). Another distinction is made at national level for major concessions (variable threshold according to the contracting authority) for financial approval of the concession project and final contract. 3. Value of concession: Estimated income of the concessionaire during the expected term of contract. Estimated value of cost is not relevant for threshold.  The Concessions Act apply to 
all works and service concessions awarded by contracting authorities, including in sector activities covered by Dir 2004/17/EC (only if awarded by contracting authorities, not if awarded by entities).  Provisions of Public 
Contracts Act apply. 1. Restricted procedure not 
aplicable 2. Negotiated procedure following a selection stage 3. Concession Dialogue - equivalent to Competitive Dialogue  Provisions of Public 
Contracts Act apply accordingly, but only economically most advantageous tender can be used in award criteria.  Applicable to 
service concessions 
Denmark Definition of service concession is 
identical to the definition in Directives 2004/17 and 2004/18. National Not defined No limitations Not defined Not defined Not defined Not applicable 
to service concessions 
Estonia Same as the EU Directives (see Art. 6 
(2) of the public procurement act). National  Not defined.  No limitations. Not defined.  Not defined.  Not defined.  Not applicable. 
Finland Service concession defined in § 5(6) 
of the public procurement act and in § 4(6) of the utilities procurement act: "a contract, similar to a service contract excecpt that the consideration consists either on the right to exploit the service or the right together with a payment" National. Not defined. No limitations. Not defined. Not defined. Not defined. Applicable to 
service concessions, except for the provisions on the mandatory standstill period. 
 
 79   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
France Selon l'article 38 (1er tiret) de la loi n° 
93-122 du 29 janvier (loi Sapin) une délégation de service public (c.à.d., une concession) est "un contrat par lequel une personne morale de droit public confie la gestion d'un service public dont elle a la responsabilité à un délégataire public ou privé, dont la rémunération est substantiellement liée aux résultats de l'exploitation du service. Le délégataire peut être chargé de construire des ouvrages ou d'acquérir des biens nécessaires au service." La jurisprudence nationale a établi que le transfert du risque à l'exploitant/délégataire/concessionnaire est le critère fondamental pour déterminer l'existence d'une DSP/concession (décision Département de la Vendée du Conseil d'Etat du 7 novembre 2008),    2) Les concessions de travaux sont définies comme étant "des contrats administratifs dont l'objet est de faire réaliser tous travaux de bâtiment ou de génie civil par un concessionnaire dont la rémunération consiste soit dans le droit d'exploiter l'ouvrage, soit dans ce droit assorti d'un prix." (article 1er de l'ordonnance n° 2009-864 du 15 juillet 2009), Bien que la question ne soit pas totalement claire, il semble que si un contrat est qualifié de 
concession de travaux, seule 
l'ordonnance n° 2009-864 s'applique (et non la loi Sapin). L'article 38, 2ème tiret, de la loi 
Sapin dispose que "Les délégations de service public des personnes morales de droit public sont soumises par l'autorité délégante à une procédure de publicité permettant la présentation de plusieurs offres concurrentes, dans des conditions prévues par un décret en Conseil d'Etat." Le décret n° 93-471 du 24 mars 1993 établit que "l'autorité responsable de la personne publique délégante doit satisfaire à l'exigence de publicité prévue à l'article 38 de la loi du 29 janvier 1993 susvisée par une insertion dans une publication habilitée à recevoir des annonces légales et dans une publication spécialisée correspondant au secteur économique concerné". La jurisprudence nationale a établi qu'à ces obligations peuvent s'ajouter des obligations de publicité supplémentaires pour atteindre un degré de publicité adéquate selon la nature de la concession/DSP et tel qu'exigé par la jurisprudence communautaire "Telaustria", 
Une publication d' "ampleur 
européenne" peut ainsi être requise, En revanche, il n'y a aucune obligation de principe de publication au JOUE.   2) Pour les concessions de travaux  d'une valeur inférieure à ce montant le pouvoir adjudicateur "choisit librement les modalités de publicité adaptées (,,,)  en fonction des caractéristiques du contrat et notamment de son montant et de la nature des travaux en cause." (articles 12 et 27 du décret n° 2010-406). En principe, toutes les 
concessions/DSP sont soumises à la loi Sapin (c.à.d., qu'il n'y pas de seuil de minimis), Toutefois, les concessions/DSP dont "le montant des sommes dues au délégataire pour toute la durée de la convention n'excède pas 106 000 euros" ou lorsque "la convention couvre une durée non supérieure à trois ans et porte sur un montant n'excédant pas 68 000 euros par an" peuvent être passées selon une procédure allégée (article 41, sous c) de la loi Sapin), Cette procédure allégée maintient toutefois l'obligation de publicité préalable ainsi que l'obligation de respecter l'article 40 de la loi Sapin sur la durée et la prolongation des concessions/DSP, Il n'y a aucune règle sur le calcul de la valeur du contrat. 2) Un seul seuil de 4,845,000 euros (articles 10, 19 et 27 du décret n° 2010-406), Concernant le calcul de la valeur du contrat le décret n° 2010-406 (articles 10, 19 et 27) dispose que: "Pour la détermination du montant mentionné au I, est pris en compte l'ensemble des produits prévisibles de l'exécution de la 
concession, incluant le cas 
échéant la valeur des installations et fournitures que le pouvoir adjudicateur se propose de mettre à la disposition du concessionnaire. Le pouvoir adjudicateur ne peut se soustraire à l'application des règles de publicité et de mise en concurrence en scindant ses achats ou en utilisant des modalités de calcul de la valeur estimée des contrats autres que celles prévues à l'alinéa qui précède. Lorsque l'opération envisagée peut être réalisée par lots séparés, est prise en compte la valeur globale estimée de la totalité de ces lots." La loi Sapin couvre tous les 
secteurs, en principe sans aucune restriction, Des questions sur son champ d'application se sont posées, d'une part, quant aux activités visées par la définition de "service public"  (par exemple, la réalisation de logements en dehors de tout but social ne serait pas un "service public") et, d'autre part, quant aux exceptions qui écartent l'application de la loi dans les cas de droits exclusifs et de "in-house" (qui a écarté pendant longtemps l'application de la loi Sapin aux concessions aéroportuaires),    2) La réglementation sur les concessions de travaux (ordonnance n° 2009-864 et décret n° 2010-406) ne s'applique pas aux concessions de travaux relevant de la directive 2004/17/CE (articles 4, 7ème point et 11, 7ème point, de l'ordonnance n° 2009-864 et article 4, 8ème point, du décret n° 2010-406).  La loi Sapin ne prévoit 
aucune disposition sur les spécifications techniques, Ces spécifications sont toutefois contrôlées par le juge national qui a estimé (décision Corsica Ferries - Conseil d'Etat du 15 décembre 2006) que "des spécifications techniques supérieures à celles exigées par la réglementation applicable au secteur d’activité peuvent être édictées par le règlement de la consultation ou le cahier des charges ; que, toutefois, si de telles spécifications ont pour effet de limiter la concurrence entre les candidats potentiels, elles doivent  être justifiées par les nécessités propres au service public faisant l’objet de la délégation",  La sélection des candidatures est effectuée dans les conditions prévues à l'article 38, 3ème alinéa qui dispose: "La collectivité publique dresse la liste des 
candidats admis à 
présenter une offre après examen de leurs garanties professionnelles et financières et de leur aptitude à assurer la continuité du service public et l'égalité des usagers devant le service public", La jurisprudence nationale a, à plusieurs reprises, précisé le premier de ces deux critères généraux. 2) La réglementation sur les concessions de travaux ne prévoit aucune disposition sur les spécifications techniques et les critères de sélection, Les principes généraux sont toutefois d'application (articles 5 et 11 de l'ordonnance n° 2009-864, article 5 du décret n° 2010-406). Le délai pour la présentation des 
candidatures est d'au moins un mois après la date de la dernière publication (article 1er, 2ème alinéa, du décret n° 93-471), Il n'y pas de délai pour la présentation des offres, Selon l'article 38, 5ème alinéa, de la loi Sapin, les offres "sont librement négociées par l'autorité responsable de la personne publique délégante qui, au terme de ces négociations, choisit le délégataire.", Par ailleurs, l'article 43, 5ème alinéa, relatif aux concessions/DSP passées par les collectivités territoriales précise que "l'autorité habilitée à signer la convention engage librement toute discussion utile avec une ou des entreprises ayant présenté une offre." Enfin, l'article 45, relatif lui aussi aux collectivités territoriales, dispose que "le recours à une procédure de négociation directe avec une entreprise déterminée n'est possible que dans le cas où, après mise en concurrence, aucune offre n'a été proposée ou n'est acceptée par la collectivité publique." Le principe est donc la négociation totalement libre entre le concédant/délégant et un ou plusieurs soumissionnaires, Ce 
principe va jusqu'à permettre au 
délégant de décider de ne pas entamer la négociation avec certain ou certains soumissionnaires ayant pourtant été sélectionnés, Toutefois, la jurisprudence nationale veille au respect du principe d'égalité entre les candidats participant à la négociation et à ce que l'objet de la concession/DSP ne soit pas modifié pendant celle-ci. 2) La réglementation sur les concessions de travaux ne prévoit aucune disposition sur les procédures de passation, La formulation de certaines dispositions indiquent que le législateur a envisagé que les concessions de travaux soient passées aussi bien par procédure négociée que par procédure ouverte ou restreinte, Les principes généraux sont toutefois d'application (articles 5 et 11 de l'ordonnance n° 2009-864, article 5 du décret n° 2010-406). La loi Sapin ne dit rien sur les 
critères d'attribution, choix justifié sur le caractère "intuitu personae" de l'attribution de la concession/DSP, Il était ainsi entendu que le délégant n'était pas obligé d'indiquer les critères d'attribution qu'il comptait appliquer pour attribuer la concession/DSP, Toutefois, les derniers développements de la jurisprudence nationale indiquent un changement de cap, Ainsi le Conseil d'Etat a estimé (décision Musée de Versailles du 23  décembre 2009) que, les DSP étant soumises aux principes généraux de la commande publique, "la personne publique doit apporter aux candidats à l’attribution d’une délégation de service public, avant le dépôt de leurs offres, une information sur les critères de sélection des offres" même si "elle n’est pas tenue d’informer les candidats des modalités de mise en œuvre de ces critères". 2) La réglementation sur les 
concessions de travaux ne 
prévoit aucune disposition sur les critères d'attribution, Les principes généraux sont toutefois d'application (articles 5 et 11 de l'ordonnance n° 2009-864, article 5 du décret n° 2010-406), et l'annexe VII B de la directive 2004/18/CE impose l'indication de ces critères dans l'avis de la concession. Applicable to 
service concessions. 
 
 80   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Germany The German public procurement 
legislation does not contain any provisions relating to service concessions.   NB: the notion of "Konzession" is used in Germany in a much larger way, often just referring to administrative authorisations ("Gaststättenkonzession" - licence for running a restaurant, or the famous Taxikonzessionen) or the simple right to use a public good/ public grounds (e.g. "Wegenutzungskonzession" - usage of public area for Energy grids, cf. the German Energiewirtschaftsgesetz: http://www.gesetze-im-internet.de/enwg_2005/index.html). However, the rules relating to these "Konzessionen" are not public procurement rules but other administrative law. Not defined. Not defined. Not defined. Not defined. Not defined. Not defined. Not applicable. 
Remedies against administrative decisions are available as far as / under the conditions forseen by general administrative law. 
Greece La loi grecque reprend la définition 
des concessions de services telle qu'elle apparaît dans le texte de la Directive 2004/18 article 1. A la lumière des informations 
disponibles, il y a pas de législation nationale couvrant les concessions de services. Par conéquent, dans le cas de procédures pour l'attribution des marchés des concessions de services, il y aura au moins de la publicité au niveau national. Il est à noter que les autorités gracques publient des avis de marché pour des contrats publics importants dans le JOEU, pour avoir une concurrence plus accrue, même s'elles n'y sont pas obligées.   Aucun seuil et aucune méthode 
prévus pour les concessions de services.Absence de réglementation. Sans objet (vu l'inexistence de 
réglementation). L'étude de Bruges a réperé des concessions de service concernant la liaison maritime avec des îles isolés. Néanmoins, il ne s'agit pas de concessions de services, vu que l'Etat accordedes subventions en enlevant ainsi le risque. Aucune réglementation. 
Pas d'information disponible sur la pratique suivie. Aucune réglementation. Pas 
d'information disponible sur la pratique suivie. Pas d''information disponible 
sur la pratique suivie. Not applicable, 
but there are other existing remedies, i.e. request for suspension and request for annulment. Nevertheless, there is no possibility to request interim measures. Given the fact that the courts reject in most cases the requests for suspensions, only the request for annulment remains (but it is also very difficult to obtain and in any case decisions on this ground take a lot of time to be issued). 
 
 81   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Hungary Under Art. 242(4) of Act No. 129 of 
2003 on Public Procurement (HPPA), "Service concession involves contracting for services where the contracting authority transfers the right to exploit commercially the provision of the relevant services (the right of exploitation) for a specific period of time and the consideration is the right of exploitation or the transfer of this right together with a monetary consideration." For works concessions in the 
Public Sector, exceeding the EU threshold: publication in the OJEU (Art. 44 and 138 HPPA). For works concessions and service concessions in the Public Sector, above the national threshold: publication in the national Procurement Gazette (Art. 244 HPPA). For service concessions covered by Act No. 16 of 1991 on Concessions (CA): publication in 2 national newspapers (Art. 8(1) CA). (The CA governs the award of concession contracts in a few specific sectors (e.g. public roads (not motorways), local and regional utilities). It's relation with the HPPA is as follows: for works concessions the HPPA prevails, for service concessions the CA has presedence.) Public Sector: EU threshold for 
works concessions: EUR 4.85M (Art. 31(2) HPPA), national threshold for works concessions: ~EUR 380T, national threshold for service concessions: ~EUR 95T (Art. 244 HPPA). Under Art. 35(1) of the HPPA, "The value of a public procurement shall be the highest consideration requested or offered in general for its subject-matter at the time of the beginning of the contract award procedure, which is to be calculated net of VAT and taking account of the provisions of Articles 36 to 40 (hereinafter referred to as ‘estimated value’). The full consideration shall include the value of the transfer of the buy option." All services in the Public Sector 
(Utilities not covered), with some specific rules for certain transport and health services (Art. 254 HPPA). The technical 
specifications and selection criteria used for the Public Sector in general. In general, the open, restricted 
and negotiated procedure with prior publication can be used. The use of the negotiated procedure without publication is subject to strict rules based on the Public Sector Directive. (Art. 144(6) and 252 HPPA) For works concessions only 
the criterion 'the economically most advantageous offer' can be used, for service concessions either the lowest offer or the economically most advantageous offer. (Art. 141(a) and 250(3)(c) HPPA) Applicable also 
to service concessions which are covered by the PP Act by reason of their value etc., with the exception of concessions in certain sectors (defined in the Concession Act, e.g. public roads - not motorways - local and regional utilities). 
Italy The same as that contained in Articles 
3 and 17 of Directive 2004/18/EC (see Article 30.1 of the Italian Code for public contracts) See reply on award procedures The threshold for services 
concessions is the same as that provided by Article 7 b of Directive 2004/18/EC for services contracts Statistically, the main sectors 
covered by services concessions are  water management services and, on the other hand, bet and games-related services; motorway management activities are normally concocted as a part of motorway concessions, which also involve a part of works contracts and works concessions Technical specifications 
are frequent; sometimes, they can be rather detailed, as it can occur in the field of bet and games-related services concessions, which often lay down very significant requirements of technical and financial capacity that have to be normally scrutinized as for their consistency with the principle of proportionality; this stems from the choice of Italy to create a market in such sector, in which the competition on it is far from being perfect, The general procedure provided is 
generally the negotiated (Art. 30 (3) of Italian Code of public contracts); however, the case-law of administrative courts makes it compulsory the recourse to open procedures on the basis of the principles of transparency and non discrimination; this entails the publication on the EUOJ of call for tenders related to services above the thresholds (those for services contracts; publication in the EUOJ basically almost all the time) and on the ITOJ for services below them; open procedures are more clearly provided as compulsory for the management of local services (article 50 of Decree Law 112/2008), for which the recourse to the "in house providing" regime is made more restrictive (besides the two Teckal conditions the authority has also to show through a market survey that recourse to the free market is not economically efficient),  Award criteria are defined on 
the basis of the best income/conditions the concessionaire can assure to the benefit of the awarding authority (e,g, as for the award of bets and games-related services concessions). Applicable to 
service concessions. 
 
 82   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Ireland The 2006 Public Sector Procurement 
Regulations transpose literally Directives 2004/18/EC and 2004/17/EC. The definition of service concession is therefore the one in those Directives.// The figure of service concession as such does not exist in IE. However the Irish concept of PPP in IE would seem to include EU service concession cases, notably in terms of the private operator bearing large part of the risk.// The State Authorities Act (public private partnershipe agreements) Act 2002  governs some aspects of the setting up of PPPs by State Authorities. Also, the Irish Goverment issued guidelines in 2006 for the setting up of PPPs which may be used  by contracting authorities. http://www.ppp.gov.ie/   According to those Guidelines:  PPP projects must be procured in line with all regulatory and EU procurement requirements in regard to tendering and bid evaluation. The 2006 Guidance from the 
central Goverment concerning PPPs establishes that: Under EU procurement law, the nature and level of communication permissible with bidders / potential bidders will be determined by the procurement procedure chosen.  In this respect please see box in this excel table relating to the choice of procedures. Not defined. Not defined. According to the 2006 
National Guidelines on PPPs: In any procurement competition, all of the tenders received are first examined to determine whether they are “suitable” bids.  The basis on which “suitability” will be determined should be clear and transparent and signalled in the tender documentation.   http://www.ppp.gov.ie/key-
documents/guidance/central-guidance  The 2006 National Guidelines on PPPs establish that :Under EU procurement law, the nature and level of communication permissible with bidders / potential bidders will be determined by the procurement procedure chosen.  The choice of procedure should be made on advice from the Sponsoring Agency’s / Centre of Expertise’s legal advisors, as appropriate.   The Public Sector Benchmark should be finalised before any tender-related communications with the private sector are commenced.  Earlier communication with the market to determine their interest in delivering a project may only occur in circumstances as outlined in section 3.3 below – dealing with optional market consultation.  Where the use of a negotiated procedure  is permitted, the client should use the tender liaison meetings as a forum to discuss the tenderers’ interpretation of the output specifications.  As indicated previously, current policy is that 
the final PSB, or any elements 
thereof, should not be made public in any communication with the market.  According to the 2006 
National Guidelines on PPPs: If a tender meets the considerations for “suitability”, including any relevant budgetary considerations, it should then be considered “suitable in principle”.  Such a bid will then be evaluated, scored and ranked according to the published Evaluation Criteria.  The Sponsoring Agency or the Centre of Expertise (according to where responsibility for the procurement of the project lies in a particular instance), will have identified the most appropriate evaluation criteria for the project and these will have been made available to interested parties in line with the requirements within the Directives.   Not applicable. 
It is difficult to be sure, since the concept of concession does not really exist, but it appears that the Remedies Directive is not applicable since the national Statute transposing it provides that the remedies therein apply to contracts covered by the national Statutes transposing Directives 2004/18 and 2004/17. 
 
 83   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Latvia The Public-Private Partnership Law 
from 2009 defines the service concession contract in Article 1 § 7 as "a contract in accordance with which byan order of a public partner the private partner renders the services set forth inAnnex 2 to the Public Procurement Law and as remuneration or a significantpart thereof for the rendering of such services is granted the right to exploit theseservices (Clause 8) of this Article) and simultaneously such service exploitationr isks (Clause 9) of 
this Article) or a significant share thereof is transferredthereto; Should a service concession contract also include the performance ofthe construction works set forth in Annex 1 to the Public Procurement Law,which is an insignificant part of the subject of this contract, such contract shallbe considered a public service contract;" Article 38 and article 57 of the 
PP Law -website of the Public Monitoring Bureau and the Official Journal of the European Union Not defined The  Public-Private Partnership 
Law applies to all works and service concessions awarded by contracting authorities, including in sector activities covered by Dir 2004/17/EC. Not defined Article 17 Types of Concession 
Procedures 1) a competition without selection of candidates;2) a competition with selection of candidates;3) competitive dialogue. According to the 2006 
National Guidelines on PPPs: If a tender meets the considerations for “suitability”, including any relevant budgetary considerations, it should then be considered “suitable in principle”.  Such a bid will then be evaluated, scored and ranked according to the published Evaluation Criteria.  The Sponsoring Agency or the Centre of Expertise (according to where responsibility for the procurement of the project lies in a particular instance), will have identified the most appropriate evaluation criteria for the project and these will have been made available to interested parties in line with the requirements within the Directives.  Applicable to 
service concessions. 
 
 84   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Lithuania Article 2 §1 of the Law amending the 
Law of the Republic of Lithuania on Concessions defines Concession as : "…the authorisation granted under this Law by the awarding authority to the concessionaire in compliance with the concession contract under the terms and conditions set forth therein to engage in the economic activity connected with the design, construction, development, renovation, transformation, repairs, management, use and/or maintenance of infrastructure objects, to provide public services, manage and/or use state-owned or municipal property (including the exploitation of mineral resources) where the concessionaire assumes under the concession contract all or part of the operating risk and undertakes the relevant rights and duties ." Article 9 (3) Tendering 
conditions shall be published in the supplement to the official gazette. By the decision of the awarding authority notice of the tendering conditions may be additionally published in the international, Lithuania’s national or regional press or other mass media. Full text of the tendering conditions approved by the awarding authority or clear and accurate reference as to the place and time when and where the relevant parts of the tendering conditions will be accessible to any interested person, the purchasing price (where set) of the documents indicated in the notice which the tendering conditions are specified, provided, however, that the text of the notice always contains a short characterisation of the subject the proposed concession.  Not defined  The Law of the Republic of 
Lithuania on Concessions applies to all works and service concessions awarded by contracting authorities, including in activities in sectors covered by Dir 2004/17/EC. Article 10.  
1) appropriate professional and technical qualification; 2) equipment and other means necessary for all phases of activities that will be carried out under the proposed concession contract or feasible possibility of possession thereof; 3) financial resources (own or borrowed funds) for all phases of works to be carried out under the proposed concession contract or feasible possibility of possession thereof after the conclusion of the concession contract. 4) proper management and organisational experience; 5) other terms and conditions laid down by the awarding authority.  Article 6. Procedure for Awarding 
Concessions  Concessions shall be awarded following open public tendering procedure provided for in Section Two of Chapter III of this Law except in cases provided for in Section Three of Chapter III of this Law when concessions may be awarded not subject to tendering. 
Article 14. (...) 
2. The criteria for evaluation and 
comparison of technical aspects 
of the tenders submitted by the tenderers may include the 
following requirements: 
1) technical soundness of the 
tender; 
2) operational feasibility the tender; 
3) quality of public services and 
measures ensuring continuity of 
service provision; 
4) environmental protection 
aspects of the tender; 
5) effect of the tender on the social and economic 
development of the country or 
an appropriate region.  
3. The criteria for evaluation and 
comparison of financial and commercial aspects of the 
tenderers’ tenders may provide 
for the following requirements: 
 1) the value of the amounts 
which the concessionaire proposes to set and collect as 
remuneration for the provided 
public services or to collect as 
local fees and charges under 
the concession contract, taking into account the planned time 
and periodicity of payment of 
such amounts; 
 2) the value of any payments to 
be made by the awarding 
authority under the concession 
contract, taking into account the planned time and periodicity of 
payment of such amounts; 
 3) the of any payments to be 
made by the concessionaire 
under the concession contract, taking into account the planned 
time and periodicity of payment 
of such amounts; 
 4) the costs related to design 
and construction activities, annual exploitation and 
maintenance costs, costs of 
proposed financial 
arrangements; 
 5) the extent of financial support requested from the 
state or the appropriate 
municipality by the awarding 
authority or any other state or 
municipal authority, should any be requested;  
 6) the feasibility and specifics of 
the proposed financing in 
accordance with the submitted 
documents relating thereto; 
  7) the acceptability to the 
tenderer of the proposed contractual terms and the 
conditioning circumstances.  Not applicable, 
but the Law on Concessions provides for some sort of appeal procedure. 
 
 85   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Luxembourg Les définitions de concessions de 
travaux et de concessions de services des directives ont été transposées (article 3, § 3 et 4, et article 55, § 2, de la loi du 25 juin 2009 sur les marchés publics), Il n'y a aucune législation sur les concessions de services, Sur les concessions de travaux, le seule législation existante est celle résultant de la transposition des dispositions de la directive 2004/18/CE (articles 48 à 50 de la loi du 25 juin précitée et articles 253 à 259 du Règlement grand-ducal du 3 août 2009 portant exécution de la loi du 25 juin), A l'exception de ces dispositions, la passation des concessions de services et des concessions de travaux n'est soumise à aucune législation, mais doit respecter les principes généraux de la commande publique. Selon les informations disponibles, les concessions de services seraient très rares (voire inexistantes) au Luxembourg, Par ailleurs, l'information est inexistante sur les pratiques suivies et sur 
l'existence éventuelle d'une jurisprudence nationale sur les concessions. Au JOUE pour les concessions 
de travaux relevant de la directive 2004/18/CE (article 253 du Règlement grand-ducal précité), Aucune obligation réglementaire pour les concessions de services et pour les concessions de travaux ne relevant pas de la directive, Pas d'informations disponibles sur la pratique suivie. Pour les concessions de travaux, 
il n'y a que le seuil prévu par la directive 2004/18/CE (article 48 de la loi du 25 juin 2009), Le calcul de la valeur des concessions de travaux est fait selon la même méthode que pour les marchés publics de travaux (article 48 précité qui renvoie à l'article 23 de la loi du 25 juin), Aucun seuil et aucune méthode prévus pour les concessions de services. Sans objet (vu l'inexistence de 
réglementation). Aucune réglementation. 
Pas d'information disponible sur la pratique suivie. Aucune réglementation. En 
principe, procédure libre, Pas d'information disponible sur la pratique suivie. A l'exception de l'obligation 
(résultant de l'annexe VII B de la directive 2004/18/CE) d'indiquer les critères d'attribution dans l'avis de marché pour les concessions de travaux relevant de la directive, aucune réglementation, Pas d''information disponible sur la pratique suivie. Not applicable 
to service concessions. Probably the common rules of administrative law on remedies apply. 
 
 86   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Malta Legal notice 296  "Financial 
Administration and Audit Act CAP.174) Public Procurement Regulations, 2010" defines the service concessions as follows: " "public service concessions contract" means a public services contract except for the fact that the consideration for the services to be provided consists either solely of the right to exploit the service or in this right together with a payment." (Regulation 2).  As far utilities are concerned, Subsidiary Legislation 174.06 "Public Procurement of Entities operating in the water, energy, transport and postal services sectors regulations" defines service concessions as follows:  " "service concession" is a contract of the same type as a service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in that right together with payment." (Regulation 1). The only provisions of L.N. 
296/2010 applicable to service concessions are: Regulation 17(2) concerning remedies which reads: "Without prejudice to the application of regulation 65(2), these regulations [L.N. 296/2010] shall not apply to public service concession contracts,  provided that  ..."(see column " Remedies Directive")  and Regulation 65(2) which reads: "When a contracting authority grants to a body other than a contracting authority, regardless of its status, special or exclusive rights to engage in a public service activity, the instrument granting this right shall stripulate that the body in question must observe the principle of non-discrimination by nationality when awarding public supply contract to third parties."  Regulation 18 of S.L. 174.06 provides that: "These regulations shall not apply to works and service concessions which are awarded by contracting entities carrying out one or more of the activities referred to in regulations 3 to 7 , 
where those concessions are 
awarded for carrying out those activities." None provided for service 
concessions. None No rules No rules No rules Applicable only 
in certain conditions and to a certain extent to service concessions. It results from Regulation 17 (2) of L.N. 296 of 2010 that competent authorities have the choice to decide whether their decisions will be subject to the reviews procedures laid down in L. N. 296/2010. Therefore, private parties/entities have themselves no right to the remedies procedure provided for under Directive 2007/66/EC. 
Netherlands Same definition as the Directive for 
both service and works concessions in both Utilities and Classical sector. However, no legislative rules for utilities sector and very limited in classical sector. EU OJ (works concessions) Same as the Directive for works 
concessions,  calculation rules of classical Directive apply None No rules No rules No rules Not applicable., 
but general system of remedies applies. 
Poland According to the Act on public works 
concessions and services concessions, a service concession is a contract, where a concession holder commits to perform the service against remuneration consisting either exclusively in the right to exploit the service or in this right together with payment, where the concession holder bears the major part of the economic risk of the concession and where payment cannot result in full recovery of the investment made by the concession holder.  National Public Procurement 
Bulletin for both works and services concessions, Official journal of the EU for works concessions Publication of both works and 
services concessions does not depend on the value (no threshold). However, for other purposes, the value of a services concession is the estimated value, without VAT, of the services constituting its subject matter.  All services including non-
priority services and utitilies, with the exception of telecommunication services On technical specifications: 
provisions similar to those in the Public Procurement Act, but simplified, i.a. requirement of recognition of equivalent norms, prohibition of references to a specific trademark. Selection criteria must be relevant to the subject matter of a concession. Negotiated procedure Award criteria must be 
disclosed in the concession notice, if possible together with their importance. No restrictions as to the content, award criteria may also refer to the characteristics of the bidder  Remedies 
similar to those applicable to public contracts. 
 
 87   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Portugal Decree-law 18/2008 of 29 January 
(the Public Procurement code) covers works and servicess concessions. Art. 407 defines «services concessions» as the contract under which the concessionnaire undertakes to manage for a certain period, on his own name and under his own responsability, an activity of public service provision, where consideration consists on the financial results of that management or on a direct payment by the contracting authority.Art. 413 further adds that the contract shall imply a significant and effective transfer of risk to the concessionnaire. Works concessions falling 
within the scope of Dir. 2004/18/EC: publication in the OJEU irrespectively of the estimated value of the contract.     Works concessions in the utilities sector and services concessions: publication in the national Official Journal (Diário da República) irrespectively of the estimated value fo the contract. On applicable thresholds see 
previous cell. The value of the contract is the maximum value of the economic benefit which,  according to the procedure adopted, can be obtained by the contractor with the full performance of the contract (see Article 17). All services including non-
priority services and services in the «utilities» sector. In addition to technical 
specifications used for public contracts in general, tender documents for the award of concessions shall include a code on the exploitation of the service or work, which shall cover the rights and obligations of both parties to the contract. This code shall also include, whenever necessary, rules on the protection of the interests of  users (of the services or works to be exploited, see Art. 44). Tender documents of award procedures related to the award of PPPs must submit to competition aspects of its implementation related to charges for the contracting authority as well as direct and indirect risks borne by it arising from the specific model of contract. All award procedures are 
accepted including the negotiated procedure with prior publication of a contract notice (see Arts. 31 and 33). The competitive dialogue is excluded for the award of concessions in the «utilities» sector (see Art. 33 (2)).Direct awards are possible for relevant reasons of public interest (see Art. 31 (3)). The same as for public 
contracts in general. The Remedies 
Directive apply 
Romania No specific definition in the OUG 
34/2006.  All concessions (services + 
works) should be published in the national electronic system of public tenders (SEAP), which has a public website. In addition, works concessions above 4.845.000 Euros must also be published at EU level in the EU Official Journal. It is possible that this obligation of publication at EU level also applies to some service concessions, but rules are not very clear.   Tender notices published in SEAP should contain a 
minimum level of information, 
listed in annex 3B of the OUG 34/2006. Calculation of the value of the 
contract is governed by the same rules as those applicable for public contracts (see art. 219 of OUG 34/2006). The provisions of OUG 34/2006 
are equally applicable to works concessions and to services concessions. However, these provisions are not applicable to concessions awarded by contracting authorities acting in the "utilities" sectors, if such concessions are granted in relation to the performance of one of such "utilities" activities. The same rules as those 
applicable to public contracts (please see art. 218 of OUG 34/2006)  All award procedures (referred to 
in the Directives in relation to public contracts), with the exception of the negotiated procedure without publication of a tender notice, are accepted in Romania for the award of concessions contracts (please see art. 2181 of OUG 34/2006). TBC Applicable to 
service concessions (art. 1 of OUG 34/2006). 
 
 88   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Slovakia Public Procurement Act 25/2006, 
Article 15(2) “Service concession” is a contract of the same type as a service contract, except for the fact that the consideration for the services to be provided consists either solely of the right to exploit the services provided for an agreed time or of that right together with payment. In a concession contract, the contracting authority and the concessionaire agree the scope of exploitation of the service provided, which may include the receiving of its benefits as well as the amount and terms of payment, if any. Article 67(2) Contracting 
authorities shall call for a concession by publishing a concession notice. The concession noticea) concerning building works shall be sent to the Publications Office and the Office,b) concerning services shall be sent to the Office.(3) Contracting authorities shall send the Office a contract award notice within 48 days from the conclusion of a concession contract.(4) When drafting and sending notices pursuant to paragraphs 2 and 3, contracting authorities shall follow Article 23 (1). No thresholds for service 
concessionsArticle 5Rules for Calculating the Estimated Contract Value(1) For the purpose of this Act, the estimated contract value is determined as the price excluding the value added tax. The estimated contract value must be based on the price at which a similar or comparable object of contract is usually sold at the time when the contract notice or notice used as a means of calling for competition is dispatched for publication. If publication of such notice is not required, the estimated contract value must be based on the price at which the same or comparable object of contract is usually sold at the time when the contract award procedure is commenced.+ general rules of the Public Procurement Act apply according to the PP Directives principles for repetition of concessions, division in lots or separate contracts, etc. Not defined. The law refers to the 
general procedure for above-threshold service contracts (IIA services) 1. Open procedure2. Restricted 
procedure3. Negotiated procedure with publication of a contract notice4. Competitive dialogue The law refers to the general 
procedure for above-threshold service contracts (IIA services) The law does 
not state expressly that service concessions claims may be submitted under the normal review procedure, but Review Body experts interpret the law in the way enabling these claims to be brought into the normal review system (complaint with the Remedies Directive) on the basis of 'miscellaneous claims'. 
 
 89   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Slovenia Article 26 of Public-Private Partnership 
Act  - a concession; i.e. a bilateral legal relationship between the state or self-governing local community or other person of public law as the awarding authority and a legal or natural person as a concessionaire, in which the awarding authority awards to the concessionaire the special or exclusive right to perform a commercial public service or other activity in the public interest, which may include the construction of structures and facilities that are in part or entirely in the public interest (hereinafter: concession partnership),  Article 92 (concept of service concessions) Where the subject of a concession partnership is the performance of commercial public services or activities provided in a manner and under conditions applicable for commercial public services, or other activities whose performance is in the public interest, or the construction of structures and fac ilities or individual 
parts thereof, whose concessionaire has during the period of the relationship the right to their use, operation and exploitation or where the right to use, operate and exploit structures and facilities is combined 
with payment for executing the works 
and this does not involve a works concession (hereinafter: services concession), the selection of concessionaire and operation of the concession relationship shall be governed by the act regulating concession partnerships Article 27 (distinction between public procurement and concession partnership) (1) If the public partner bears the majority or entirety of the commercial risk involved in operating a public-private partnership project, the public-private partnership, irrespective of its title or arrangement in a special law, for the purposes of this Act shall not be deemed to be a concession, but a public procurement partnership. Article 42 of Public-Private 
Partnership Act  Irrespective of the form of selection instrument, a public-private partnership contractor shall be selected, unless otherwise provided by law, on the basis of a public tender, notice of which must also be published on the Internet. 4. METHODS OF PROMOTING 
PUBLIC-PRIVATE PARTNERSHIP Article 8 (assessing the possibilities for public-private partnership) (1) In order to promote public-private partnership, in selecting the method of implementing the project (procedure) that might be the subject of public-private partnership in the sense of Article 2 of this Act, the public partner must assess whether it can be carried out as a public-private partnership (assessing the grounds of project feasibility and comparison of options or other projects). Assessments shall not be obligatory in the case of projects provided by a regulation referred to in the fourth paragraph of this Act. (2) In the case of a value greater than 5,278,000 euros the public partner may carry out the procurement of works or services as public procurement only if in respect of the economic and other circumstances of the project it has determined that the procedure cannot be carried out in one of the forms of public-private partnership or that this is not economically 
justified. Article 93 
(performing commercial public services) Where the subject of a services concession is the performance of commercial public services or activities provided in a manner and under conditions applicable for commercial public services, the selection of concessionaire and operation of the concession relationship shall also be governed by the rules of the act regulating commercial public services. Article 94 (performing other activities in the public interest) Where the subject of a services concession is the performance of other provided in the public interest, the selection of concessionaire and operation of the concession relationship shall also be governed mutatis mutandis by the rules of the act regulating commercial public services. Not defined Not defined Not defined. Not applicable 
to concessions 
 
 90   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
Spain Article 8, Public Contracts Law, 2007 
defines service concessions as the contract in which a public authority entails a juridical or physical person the management of a public service, whose provision falls within the scope of the competences of the public authority. Articles 251 and 253,a) settle down that through a concession a public administration could manage indirectly services of its own competence, whenever they could be exploited by private operators. In concessions, the concessionaire will assume the risk of the contract. Publication must be at national 
level in the "Boletín Oficial del Estado" or at regional level in the "Diario Oficial de la Comunidad Autónoma" (depending on the contracting authority). Works concessions must be published at EU level in the OJEU (article 126). Works contracts and works 
concessions above 5.278.000 euros euros and supply and services contracts above 18.000 euros shall be awarde by open, restricted (see Art. 122). Negotiated procedures can be used in special circumstances (see Arts. 154 and 156) or, for services concessions only, when the value of the contract is bwlow 500.000 euros. Competitive dialogue can be used only in case of  specially complex contracts. On the calculation of the value of the contract, Art 76 (3) provides on works concessions that the it shall be taken into consideration the value of the works and the estimated value of the expenses needed for the execution of theses works. Regarding  services concessions, article 156,b) specifies that the negotiated procedure can be used if the value of  all the expenses the concessionaire has incurred to start the provision of the service is below 500.000 euros. Utilities and non-priority 
services are covered by Public Contracts Law and the applicable procedures. Use of those related to 
public contracts in general. In addition, the law requires prior specifications of the legal regime related to the service exploited, this is to say: " there must be express declaration that the activity in question is undertaken by the Administration in question, attribution of the the necessary administrative competences, fixing the duration of the prestation in favour of the administered citizensm and regulation of the legal, economic and administrative aspects relating to the prestation of the service". In the relevant cases, the legal regime of tolls will also be determined (whenever applicable, see Arts. articles 116 and 117). As a general rule, use of an open 
and restricted procedure. Competitive dialogue as exception for complex contracts provided by law. Negotiated procedure only for special cases established by law namely: 1) The same as in articles 30 (1) (a), 30 (1) (b),  31 (1) (a), 31 (1) (b), 31 (1) (c)  of Directive 2004/18/EC, 2) when the contract has been declared secret or reserved; when its execution must be accompanied by special security measures fixed the legislation in force; or when it is necessary for the protection of the essential interests of the State. 3) In the case of contracts included under article 296 of the EC Treaty. The same as for public 
contracts in general. Applicable 
whenever "the budget for the expenses of the first establishment, excluding VAT, is above 500.000 euros and its duration exceeds 5 years". 
Sweden Definition of service concession in § 
17 of the public procurmement act and in § 18 of the utilities act: "same type of contract as a service contract, expect that the consideration consists partly or completely of the right to exploit the service. National Not defined No limitations Not defined. Not defined. Not defined. Not applicable. 
 
 91   Definition of service concessions Level of publication Thresholds and method of 
calculating the value of the 
contract Services covered Technical specifications 
and selection criteria Award procedure Award criteria Remedies 
Directive 
UK The Public Contracts Regulations SI 
2006 No.5 (classical sector) define a works/services concession, as a public works/services contract under which the consideration given by the contracting authority consists of or includes the grant of a right to exploit the works/services to be carried out under the contract. (art.2) Service concessions are excluded from this Law (art.6)- The Utilities Contracts SI 2006 No.6 (utilities sector) provides the same definition, except that the term "contracting authority" is replaced by "utility". (art.2)Both types of concessions are expressly excluded from this Law (art.6) The Public Contracts 
Regulations SI 2006 No.5, provides for publication in the OJEU, for works concessions falling within the scope of Dir.2004/18 (art.36)On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6)                               N.B For those cases which fall completely outside the Directives (i.e concerning service concessions for the classical sector, and both services and works concessions for the utilities sector), as well as for works concessions which only fall partly within the classical Directive, guidance has been published by the Office of Government Commerce in March 2008, which explains the need that tendering procedures have to comply with the fundamental Treaty principles.  The Public Contracts Regulations 
SI 2006 No.5, applies only for works concessions with an estimated value above the threshold set in 2004/18. (art.36). The estimated value for a works concession, is the value of the consideration which the contracting authority would expect to give for the carrying out of the works, if it did not propose to grant a concession (art.36). On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6) The Public Contracts 
Regulations SI 2006 No.5 provides with regard to works concessions, that the same types of contracts are covered, as in the case of public works contracts (art.2). On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6) The Public Contracts 
Regulations SI 2006 No.5 provides that the same technical specifications that apply to public works contracts, also apply with regard to work concessions. (articles 5 & 9). On selection criteria, however, N/A, as no similar provision exists. On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6) The Public Contracts Regulations 
SI 2006 No.5 does not make any provision on the award procedures to be followed for awarding works concessions – N/A.On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6) The Public Contracts 
Regulations SI 2006 No.5 does not make any provision on the award criteria for awarding works concessions – N/A.On service concessions, N/A, as these are excluded from this Law (art.6)- With regard to The Utilities Contracts SI 2006 No.6 –N/A, as both types of concessions are expressly excluded from this Law (art.6) Not applicable 
to service concessions. 
 
 92 
 Annex III — List of consultations with stakeholders   
January •Meeting with Veolia on PPP's and concessions 
March •Meeting with E3PO 
September •Meeting with BOUYGUES 
•Meeting with ASECAP 
October •Meeting with FIEC 
•Meeting with IGD •Meeting with EDF •Meeting with CARITAS on concessions and German Social Services system 2009 
December •Meeting with SUEZ on concessions and PPPs 
March •Meeting with BDEW German Association of Energy- and Water 
Industries •Meeting with BDI 
April  •Meeting with UTP 
June •Meeting with Veolia 
•Meeting with Europabüro des DStGB 
•Meeting with Committee of the Regions •Meeting with FIEC - PPPS, concessions •Meeting with BUSINESSEUROPE •Meeting with ports association ESPO •Meeting with L'Union sociale pour l'habitat-Représentation auprès de l'UE Housing Europe Center, con cession and social housing 
July •Meeting with BDI 
•Meeting with CEMR •Meeting with Maison Européenne  des pouvoirs locaux français 
•Meeting with French Local public Entreprises' 
September •Meeting with Council of European Municipalities and Regions 
•Meeting with the CoR rapporteur •Meeting with Representation of the State of Baden Württemberg 
•Meeting with Representation NRW - Ministerium für Wirtschaft, 
Mittelstand und Energie des Landes Nordrhein-Westfalen 
•Meeting with Land Mecklenburg-Vorpommern 
October •Meeting with DIHK 2010 
December •Videoconference with EIB 
•Meeting with E3PO 
January •Meeting with SUEZ Environnement 
•Meeting with VATTENFALL AB | European Affairs  •Meeting with Hutchison Port Holdings  •Meeting with GDF SUEZ 
February •Meeting with VEOLIA ENVIRONNEMENT  
•Meeting with SUEZ Environnement •Meeting with ESPO •Meeting with CEEP  •Meeting with BUSINESSEUROPE 2011 
March •Meeting with UITP 
 
 93•Meeting with European Affairs Advisor Union Française de 
l'Electricité •Meeting with ESPO 
April •Meeting with CEEP 
May •Meeting with VEOLIA 
•Meeting with ASECAP 
July •Meeting with Europolitique 
September •Meeting with CEEP  
•Meeting with SUEZ Environnement •Meeting with ETUC 
October •Meeting with ETUC 
November •Meeting with CEEP 
•Meeting with SUEZ Environnement •Meeting with E 3PO  •Meeting with CEEP  
December •Meeting with Groupe Keolis  
•Meeting with GDF Suez 
 
 
 94 
Annex IV — Summary of the report «Public serv ices in the European Union and in the 27 
Member States» (potential for concession contracts)  
Information on PPPs and public services in  Member States indicating the potential
 
use of concessions  
 
 
Additional information on the use of concessi ons in the EU may be found in the study 
conducted by the European Centre of Employers  and Enterprises providing Public services  
(CEEP) on the provision of servi ces of general interest (SGIs)  in Europe. The study entitled 
"Public Services in the European Union and in the 27 Member States" was published in May 
2010.  The report provides an indication on Member St ates' dynamics concerning the externalisation 
of the provision of some important services and therefore also on the potential future use of 
concessions.
1 
 
In this regard, certain general trends can be identified, confir ming the growing need for a clear 
legal framework governing externalisation or delegation of public tasks, notably PPPs and 
thus, concessions (which are estimated to constitute approximat ely 60% of all PPPs). 
 Indeed, most of the EU Member States referred to in the report have undertaken measures aiming at a greater involvement of private entiti es in the provision of public services. This 
trend is particularly strong in Member States such as France or Spain, with well established 
legal environment for concessions and where concessions have traditionally played an important role, but also in su ch countries as the UK, Italy,  Germany, Portugal, Greece and 
some new Member States, with notable examples  of Bulgaria, Czech Republic and Hungary.   
 This involvement frequently takes a form of PPPs, therefore concessi ons or public contracts 
awarded in certain cases to mixed entities (Institu tionalised PPPs). PPPs are of particular 
interest to those Member States which are fa ced with budgetary constraints, as well as to 
those with the imminent ne ed to upgrade, modernise or  develop public services 
infrastructures. This is the case of many new Member States, such as Bulgaria, Czech Republic, Hungary, Poland or Lithuania, but also  in certain old Member States, such as 
Germany.  The benefits of PPPs have been recognised in many Member States and such forms of 
providing public services and infrastructures are often promot ed by specialised PPP agencies. 
However, in spite of national le gislation and institutions back ing development of PPPs, many 
of these Member States are still at an early stag e of the process. In ma ny sectors, direct public 
                                                
 
1 However, in using this information one has to bear in mind that: 
a) the study covers both the provision of market (services of general economic interest) and nonmarket services 
(which are not covered by the initiative on concessions); 
b)  SGEI are not defined in the Treaty or in secondary legi slation and refer only to a part of the services that can 
be awarded as concessions; 
 
 
 95provision of services or provision by fully publ ic bodies is still predominant (i.a. water in 
Bulgaria and Portugal, local and non-network pub lic services in Italy) although devolution of 
powers to regional and local entities seems to be , in some cases, stimulating the use of PPPs 
(Czech Republic, Spain, Slovakia). Finally, there are also Member States where the provision 
of public services by private entities remains rare or inex istent (Denmark, Luxembourg). 
 Under "New Public Management" (NPM) the study examines a broad movement of EU 
countries which have initiated a reform processe s to increase efficiency of public action. In 
this context, public authorities are considered to be playing a greater role as a purchaser, 
organizer and controller rather than as producer. The general tr end is to gradually reduce the 
direct intervention of public au thorities and to involve the pr ivate sector. This evolution 
indicates further potential for th e increased use of concessions. 
 Situation per Member State:
 
 
AUSTRIA 
 
Provision of services of general interest is partly handled by outsourced companies. 
According to assessments2, the management of local public serv ices in Austria is provided by 
around 1200 local companies. 
 
BELGIUM  
Belgium is marked by the logics of the NP M and begins to see the development of 
autonomous regulatory agencies  to support the liberalisation of certain sectors (post and 
telecommunications, audiovisual etc.). Flande rs has adopted a specific legislation to 
encourage and facilitate the PPPs
3. However, in 2005, less than 2% of Belgian public 
investment took the form of PPP (urban centr es, schools, sport, and local transportation). 
 
BULGARIA  
 
From 1998, after the beginning of the privatisation pr ocess of public prope rty, the procedure 
most often used for re-developm ent of public enterprises and in frastructure used to provide 
public services, is the procedure of concession4. 
In a period, between 1998 and 2000, concessions  were concluded in the area of water, 
heating, electricity, and also functions relating to waste treatment and transport. Currently, 
most of economic and non economic  services of general interest  are run by private or mixed 
companies. In the field of services of gene ral economic interest, the involvement of the 
private sector often results from the privatisation of commercial companies established by the state or the municipalities for the purpose of  the delivery of public  services. Also, the 
provision of public services by the private se ctor is governed not only by the concession 
regime but also by a set of s ectoral laws and regulations.  
In 2006, an initiative of the Mi nistry of Finance formally announced the support of PPPs in 
order to improve the quality of public services  and investments in national infrastructure. 
                                                
 
2  Dominique Hoorens, Les collectivités territorial es dans l’Union européenne. Organisation, 
compétences et finances, Dexia, 2008, p. 187. 
3  http://www2.vlaanderen.be/pps/documenten/flemish_ppp_decree_english_version.pdf   
4  Concession Act of 2005. 
 
 96However, the concept of PPP is not enshrine d in the legislation, PPP practices being 
developed on the basis of concession regime and commercial law. In the water sector, the 
concession granted for the provisi on of water supply services in  Sofia is the only delegated 
management in this sector5. 
 
CZECH REPUBLIC 
 
The implementation of the regional reform and the delegation of some State powers to local 
authorities are considered opportunities to deve lop new methods of public service delivery by 
different levels of administration through horiz ontal and vertical coope ration, and partnership 
with the third sector6.  
External forms of delivery dominate particul arly in the areas of waste and sewerage, 
municipal transport, cleaning, street lighting and municipal housing. 70% of the population 
receives water services from private compan ies, the highest percentage of the new EU 
Member States.  Czech municipal firms were dominantly established by privatisation of former communal services organizations.  The Czech Government adopted in 2004 a policy introducing PPPs as a standard tool for the 
provision of public services and public infrastructure. In practice , however, there is still much 
room for development of PPPs
7.  
 Scale of external forms (contractin g-out) of delivery of selected local public services in Czech 
municipalities (% among all used  service delivery methods) 
 
Service 2000 
 2004  
 
Waste 71 80 
 
Cemeteries 42 26 
 
Public green areas 45 24 
 
Communications 31 38 
Public lighting 23 60 
 
GERMANY  
 
For the management of public services, the infr anational authorities or their associations 
(mostly unions of municipalities - Zweckverbände, but also associations of municipalities and 
regional associations) tend to have recourse to local public companies subject to company 
law. In practice, the vast majority of local  public companies are still owned by the local 
communities (mainly in the sectors of water s upply and energy, waste treatment, transport, 
housing, cultural services and hospitals).  
                                                 
5  Maria Schueler, «Bulgaria», in Markus Krajewski,  Ulla Neergaard, J. van de Gronden (eds.), The 
Changing Legal Framework for Services of General Interest in Europe, TMC Asser Press, The Hague, 2009, p. 
481. 
6  OECD, Examens territoriaux de l’OCDE. République tcheque, p. 121-122 
7  For information about some important PPP projects see 
http://www.mfcr.cz/cps/rde/xchg /mfcr/xsl/en_ppp_czec h_republic_47747.html   
 
 97The debate on the virtues of PPPs, inspired by in ter alia economic pressu res from the rising 
costs of social benefits and the costs of mode rnising local infrastructure. Recent assessments 
indicate about 5% of PPP proj ects in the total local investme nt (school, transport, culture, 
urban development)8. 
 
DENMARK 
 
Denmark has been more reluctant to implement the marketisation aspect of NPM; it tries out new management ideas but not primarily thos e concerned with markets and contracting
9. That 
explains the less developed PPP policy and relatively few PPP pr ojects. The official Danish 
PPP policy paper (Action Plan for Public Privat e Partnerships) was firs t issued in January 
200410. 
 
ESTONIA  
 
Local authorities may arrange the provision of cer tain public services  through the private 
sector. Contracting out is widely  use in practice, especially in  the case of technical tasks. 
 
SPAIN 
 
Spain has a long tradition of delegating manageme nt of local public services to the private 
sector. With the opening of many  areas of competition, the model of delegated management is 
now more widely used, private structures replacing the local government (in the area of 
heating and water for example). The delegation of a public service to a public entity may take f our different forms - contracts 
of indirect provision of public services: a conc ession (concesion) to a private undertaking that 
will provide the public service and assume the ec onomic risk resulting from its exploitation; 
the “interested” provision (gestion interesada),  a technique rarely used, whereby the private 
party provides the service, but both this part y and the public body shar e the results of the 
activity according to proportions previously agreed in the contra ct; the “agreement” 
(concierto) between the public administration a nd a private party that was already supplying 
the service and that receives fixed compensa tion; and an instituti onalised public private 
partnership in the form of a mixed capital ent ity, the capital of which is held jointly by the 
contracting entity and the private partner. 
Concessions and mixed capital companies are th e two most frequently used delegation forms 
in the area of economic public serv ices, especially at local level. The wate r and waste services 
are most often managed by concession (e.g. fo r water and wastewater, public monopoly in 
Madrid, private monopoly in Barcelona, PPP). The legal regime and the effects of concession 
depend on whether the activity has been reserv ed, or remains open to the free market.  
The concierto is habitually employed in the field of social public servic es, such as education, 
hospitals and social care se rvices (e.g., elderly homes)
11.  
                                                 
8  Dominique Hoorens, Les collectivités territoriales dans l’Union européenne. Organisation, compétences et 
finances, Dexia, 2008, p. 163. 
9  The same approach as in the two other Scandinavian states. 
10  Carsten Greve, Graeme Hodge, “Public-Private Partne rship: a comparative perspective on Victoria and 
Denmark”, in Tom Christensen, Per Laegreid, Transcending new public management: the transformation of 
public sector reforms, Ashgate, 2007, 179 
11  Luis Arroyo Jimenez, in Markus Krajevski, Ulla Neergaard, Johan van de Gronden (eds.), The 
challenging legal framework for services of general intere st in Europe, T.C.M. Asser Press, 2009, pp. 320, 312. 
 
 98Since 2003, PPP has developed in Spain, mostly in the sectors of transportation, infrastructure 
and hospital care12. 
 
FINLAND  
 
Municipalities may purchase pu blic services from various  service providers (other 
municipalities, federation of municipalities, public sector  organisations, and private 
providers). The recent developments show a tende ncy to make stronger the private provision 
of public services which play an important role  in the sectors of ener gy (highly competitive), 
day-care, elderly care and even  hospital and health services. 
Development of PPP in public se rvices provision is mainly fo cused on investment projects 
aiming at development of infrastructure ( public buildings like sc hools and motorways and 
railways).   
FRANCE 
 
The model of delegated management
13 is widely present in the areas of industrial and 
commercial services, private structures substitu ting for the public authorities. The delegate 
operator may be a private or a public local company (mixed company - société d’économie 
mixte/SEM).  In the sector of transport (except for rail),  the local authorities generally use delegated 
management
14. In urban public transport in provincial France, the share of direct management 
tends to stabilise around 10% (from 1997 to 2005). It is governed by régies with financial 
autonomy, in the small networks (for a total of about twenty networks in direct management) 
and EPIC for large networks. Compared to all public transport networ ks, direct management 
concerns rather the small networks (15 of 19 régies in 2005 covering fewer than 100 000 
inhabitants). For bigger networks, organizing au thorities tend to use a specialised private 
provider. The Communities (urban agglomerations , municipalities) delegate extensively; the 
municipalities and mixed unions (s yndicats mixtes) delegate less. 
The water sector is dominated by delegated management: in 2004, over 80% of the population 
is served by private companies (some remuni cipalisations in Grenoble, 1994; Castres, 2003; 
Cherbourg, 2005; Paris, 2010). In waste water de legated management covers about 55% of 
the population.  
More recently, at the level of State public serv ices, NPM led the state to divest some of its 
functions of service operator, in favour of the role of regulator of activities entrusted to 
private operators. This change of the conception of the role of th e State, has particularly led to a multiplication 
of privatisations, the developmen t of public-private partnerships
15 and the emergence of 
numerous regulatory agencies, under the label of independent administrative authorities. 
  
                                                
 
12  Dominique Hoorens (dir.), Les collectivités territoriales dans l’Union européenne. Organisation, 
compétences et finances, Dexia, 2008, p.335. 
13  See http://www.eurosig.eu/article78.html   
14  Excepting Paris –Régie autonome des transports parisiens RATP, and several others (régies with only 
financial autonomy for small networks, and EPIC for larger networks) 
15  Since the ordinance of June 2004 and establishment of May 2005 of Mission d’appui aux partenariats 
public-privé (MAPPP). 
 
 99GREECE 
 
Over recent years Greece has seen significant pa rticipation by the privat e sector, by means of 
PPPs, in the construction and management of  projects involving in particular major 
infrastructures or specific construction projects  (airport, bridge, and motorway). PPPs are 
regulated by the Act 3389/2005 ‘Partnerships be tween the Public and Private Sector’ which 
covers only partnerships with a budget of up to 200 million euros16. 
 
HUNGARY 
 
In Hungary, both simple contract (for exampl e between municipalities and privately owned 
schools providing a public service, or be tween family physicians, who are private 
entrepreneurs, and the na tional health insurance), and concessions are common.  
PPP is a relatively new phenomenon and is used in the development of the infrastructure 
necessary for the provision of services in a limite d range of sectors: (i) in the field of sport 
services (the building of  gymnasiums, swimming pools, sports  halls), (ii) road transportation 
(the building of motorways), (iii) cultural services  (the “Palace of Arts” in Budapest), and (iv) 
secondary and higher education (the building an d renovation of student ha lls and dormitories). 
Some prisons are also being built and reconstructed in th e framework of PPP programmes. 
The yearly budgetary spending on PPP programmes is around 80-100 billion HUF. 
 
IRELAND 
 
Since the National Development Finance Agency Act 2002, local authorities may establish joint ventures in the form of PPP. At local le vel, most PPPs are concluded in the areas of 
water and sewerage. At national level the PPP projects involve the construction of 
roads/carriageway/services areas on the nationa l roads network, building projects for services 
of justice, health, education, culture, etc
17.  
 
ITALY  
 
In the past two decades, the management met hods of public service were enlarged by the 
Italian legislator both for national and local public  services. Direct provision is widespread in 
most local public services and in all non-ne twork activities. Delegated management by 
concession was introduced in  the Italian legal order by the Law n°103 of 29 March 1903 
under the public law regime. Today it is used, at national level, in the public broadcasting 
sector and at regional-local level mostly in th e areas of regional and local transport sectors 
and other local services such as child care, and school transport and meals.  
The third (ie, voluntary) sector, composed of a complex of institutions placed between State and market, plays an important role today. Thes e are privately organised entities which aim to 
produce and supply social services  of general interest. The legi slation permits contracting out 
for the supply of social services and attributes  to Regions the function to take measures in 
order to regulate the relationship between local au thorities and the third se ctor, with particular 
regard to the "contracting out system" of services to indi viduals. It belongs to public 
authorities to establish forms of collaborati on with voluntary organisations. Municipalities 
may purchase services and interventions organi zed by the third sector or may contract out 
                                                
 
16  P.C. Spyropoulos, Theodore P. Fort sakis, Constitutional Law in Greece, Kl uwer Law International, p. 176. 
17  http://www.ppp .gov.ie/; http://www.environ.ie/en/Developm entandHousing/Planni ngDevelopment/PPP/ 
 
 100their management while respecting the national and EU rules which regulate the contracting 
out of services by the government. Munici palities contract out based on the most 
economically advantageous tender having rega rd to specific qualitative elements. 
 
Since the 1990s, the use of PPP has been widesp read in Italy, primaril y in the sectors of 
transport infrastructure, utilitie s, hospital health  services, housing, manage ment of waste, etc. 
A special public structure was created in 2000 to support investment pr ojects in the public 
sector (Unita Tecnica Finanza di Progetto - UFP). In 2006, the work concession under private 
initiative was the most widespread procedure in  the Italian PPP market; the service concession 
accounted for 23,6% in value of total PPP market18.  
 
LITHUANIA 
 
Municipal institutions and administration may not provide public services, except for the 
cases provided by law. They shall be provi ded by budgetary and public establishments, 
municipal undertakings, companies with share cap ital and other entities. Public services shall 
be provided by service providers established by municipalities or ot her legal and natural 
persons under contracts concluded with munici palities, who are chosen  by public tender. In 
the absence of a provider of public services, a ward or neighbourhood may, by the decision of 
the municipal council, provide public services itse lf (article 5 and 8, 9 of the law on local self-
government).  In general, the concession procedure may be used  for the provision of public services in areas 
determined by law: energy, including heat and electricity energy, oil and natural gas 
extraction, transmission, distribution, supply, railway lines and systems, water economy, 
including water collection, pumping, treatment, purification and distri bution; waste water, 
including waste water collection, transpor tation and treatment, and sludge treatment; 
utilisation, recycli ng and management of waste; infrastruc ture of road transport; health care 
system; telecommunications infrastructure ; educational system; port and barrage 
infrastructure; airport infrastructure; public tran sport infrastructure; tourism objects, facilities 
and other infrastructure; culture , sports, leisure facilities, e quipment and other infrastructure
19. 
 The need to improve public infras tructure and public services situation and the limitations on 
the main country fiscal indicators set by intern ational treaties (Stability  and Growth Pact and 
Maastricht Treaty) and therefore Government  inability to devote appropriate financial 
resources to meet those needs are determin ing the PPP development in Lithuania. PPP 
country process development was started by MO F in the middle of 2005. Today the process is 
mainly spontaneous as there is no long term PPP strategy or action plan, no centralised PPP 
process development and management and superv ision or a sufficient clearly developed legal 
system enabling effective application of diffe rent PPP forms. Public and private sectors 
cooperation possibility is foreseen by the Concession law of 1997 revised in 2003, the public 
procurement law, the Civil code, the Law on Ma nagement, Usage and Disposal of State and 
Municipal Property. Currently existing legal ba sis provides for 2 PPP forms application: 
concession (the most developed PPP type, on the grounds of Concession Law provisions), 
joint activity (joint ventures) - establishing mixed capital en terprises (on the grounds of Law 
on Management, Usage and Dispos al of State and Municipal Property provisions, contract 
limited to 3 years). PPP projects are initiated an d carried out mainly by municipalities. The 
                                                
 
18  Laura Martiniello, Italian PPP at a glance, 
http://www.utfp.it/docs/Italian%20 PPP%20at%20a%20glance_Martiniello_2008.pdf   
19  Law n° I-1510 on concession of 10 September 1996, last amended by Law n° X-749 of 11 July 2006 
 
 101State is not active in PPP field and there is a lack of strong political support for the PPP 
process (the first concession type  project was in 2002 - long term lease of Vilnius city heating 
networks). According to the National A udit Office of Lithuani a by September 2007, 45 
concession type projects were initiated by 26 municipalities (above 43% out of total amount) 
and in many cases there was onl y one participant during tender20. The Lithuanian government 
decided to start implementing a new PPP programme from 2010. 
  
LUXEMBOURG 
 
The contracting of public services pr ovision is not developed in Luxembourg21; the majority 
of local public services are supplied by public structures. 
 
LATVIA 
 
The contractual delegation of pub lic services to a pr ivate company or a local public company 
had been governed by the Law on c oncessions in force since 2000.  
In 2004, a new law on public procurement was enact ed in Latvia with a provision on PPP and 
the adoption of specific legislat ion is in progress. PPP projects  could also be realised under 
the concession regime (law of 2000). The first PPP projects at local level concern mainly the 
areas of housing, education, heating, street lighting, etc.). At nati onal level, prac tical projects 
were planned for the transport sector, and en ergy infrastructure. A public policy framework 
on PPP (“Promotion Guidelines of Latvian Public  Private Partnership”) and an action plan 
(“Action Plan for Implementation of Promo tion Guidelines of Latvian PPP for 2006–2009”) 
were adopted in 2005. The first Latvian law on PPP22 came into effect on 1st October 2009 
and repeals the previous law on concessions23. In 2008 there were 18 PPP concluded 
agreements (the first was concluded in 2001), 16 in the transport sector (public transport 
service concession), 7 for communa l services (waste water treatment service concession), 1 in 
education (art school renovation and operation) , health care, natural resources, IT and 
tourism24.  
 
THE NETHERLANDS 
 
Many PPP projects were initiate d at national level and a ce ntre of expertise on PPP 
(Kenniscentrum publiekprivate samenwerking)  was founded in 1999. However, locally, PPPs 
are rare.   
POLAND 
For the provision of some public services, the public authorities can entrust the activity to 
private providers by means of public procuremen t. There is also a large group of providers 
                                                
 
20  Diana Vaitiek ūniene, Ministry of Finance of Lithuania, PPP process development in Lithuania, 29 
January 2009, http://www.ppp .gov.lv/fetch_1856.html. See also some examples on 
http://www.ppp.gov.lv/fetch_1857.html   
21  For example, canteens 
22  See the text on http://www .ppp.gov.lv/fetch_5917.html 
23  Latvijas Republikas Saeimas un Ministru Kabineta Zi ņotājs, 2000, No. 4; 2003, No. 2 
24  http://www.ppp.gov.lv/fetch_1849.html 
 
 102outside the public sector, acting in the name  of the community – non-public providers of 
services – including both pr ivate undertakings as well as non-profit organisations. 
 
PPPs, namely the provision of services of genera l interest by private operators is sanctioned 
by Polish law in the form of the cooperation of private enterprise supported by private capital 
with the public sector at a ll levels. In Poland it has only just begun to play a role.  
The legal basis for PPPs in Poland is cons tituted, notably, by the Act on public-private 
partnership of 19 December 2008. Public and priv ate partners cooperate in various forms, 
especially in water and sanitation, waste dispos al, and most recently in municipal building for 
the communities.  Agreement on public-private partnership is preceded by economic financial and legal 
analyses, to ensure the optimal financing of subsequent investment, and the realisation of 
savings, which every PPP project must be dem onstrated to secure during its life cycle. 
 
PORTUGAL 
 
As their competences are growing, local gov ernments in Portugal no longer assume the 
provision of all public se rvices through in-house  services. By the end of the 1990s, some local 
governments began contracting with external actors to provide public  services, including 
water and solid waste, electricity and local transport.  PPP projects and concession agreements were  developed in the mid-1990s. Today, the 
concession agreements are regula ted by the Public Contracts Code
25 and the public-private 
partnerships are regulated by Decree-law n°86 of 2 April 200326 and are well developed in the 
transport sectors (highways, metro, tr am, rail transport infrastructure, and 
telecommunications), and advances in health care (hospital building27), management of water 
and waste.  Portuguese public administration was also subject to NPM reforms meant to  revitalise service 
delivery and to introduce i nnovative organisation to de liver public services. 
The major dimensions of NPM initiatives were: 
• autonomisation and “corporatisation” of public services although remaining in the 
public sector (water, health care and cultural services); 
• introduction of market mechanisms in the public services sector  through tariffs and 
free choice of the service provi der (health, education, etc.); 
• “Contractualisation” of public  service obligations with the public providers (TV and 
radio public service, postal services, etc.) 
 
ROMANIA 
 
The delegated management of public services developed after 1990 thro ugh the concession of 
economic public services to privat e operators (private or mixed commercial enterprises, some 
arising from the transformati on of autonomous public regii
28 or the specialised municipal 
                                                 
25  See Decree Law n° 18 of 29 January 2008 
26  See for the health sector Decree Law n° 185 of 20 August 2002 
27  http://www.parpublica. pt/pppsanalise.html 
28  The Law on local public administration n° 69/1991 gives local authorities the power and autonomy to 
perform the services of local interest. In 1991, on the basis of the Law n° 15 of 7 August 1990, the units of local 
 
 103services), most often in areas of heating, wast e management, urban public transport, street 
cleaning and rarely water29.  
Not-for-profit operators are mo st often involved in the pr ovision of social services. 
Romanian legislation introduced  the contracts of public-priva te partnership in 2002. The Law 
n° 34/2006 created a general framework for the concession contracts (including PPP – 
transport infrastructure, tourism, research, etc.).   
SWEDEN 
 
The main relevant legal regime deri ves from the Public Procurement Act
30 which establishes 
the rules for public authorities as contracting entities and from the Company Law31. 
According to the Local Government Act, before a regional municipality hands over 
management to a private entrepreneur it has to make sure that it will have the capacity to 
control and to be able to  follow up on the activities. 
 
SLOVENIA 
 
The manner of and conditions for performing lo cal public services shall be defined by the 
municipality, unless othe rwise provided by law32.  
Public services in Slovenia are performed by the special legal persons (public institution, public commercial institutions, publ ic enterprise etc.) established by the stat e or municipality. 
These organisations have their own legal pe rsonality and autonomy in determining their 
strategic plan, annual working programmes, financial plans a nd annual report. They are not 
directly financed from the national or local budget.  The law on institutions enabled the participat ion of the private sector in non-commercial 
public services (e.g. education, culture, he alth, etc.) by concession. The law on economic 
public services allows for the delegated mana gement by concession. Both  laws gave only the 
basic legal framework. How certain public serv ices should be “produced” is should by a 
regulated by each specific law for each type of service.  The Public-Private Partnership Act 
33 was adopted at the end of 2006 to enable and encourage 
mutual help and cooperation between entities from  the public and the private sectors to ensure 
economical and efficient provision of public servi ces and other goods or services in the public 
interest34. PPP are carried out in the areas of fina ncing, design and engineering, construction, 
                                                                                                                                                         
administration were involved in a reorganisation process and became autonomous entities (regii autonome) and 
companies, and later in a process of privatisation. By Government Decision n° 597/1992, the autonomous 
entities (regii autonome) and the companies established with the capital from the State for the provision of public 
services have been transferred to the competence of local councils. The evolution of the public services 
reorganisation process has revealed the deficiencies of the management by autonomous public entitites (regii autonome) and their ineffi ciency. In 1997, the Government Decision n° 30 started a long process of 
reorganisation (in some cases, of liquidation) of autonomous entities (regii autonome) into limited companies. 
29  For example, Apa Nova SA Bucharest, the concession aire of the water and waste water public service 
in Bucharest capital city – subsidiary of Veolia Envir onment – Veolia Water. Since March 2000, 83,69% of its 
capital is owned by Veolia Group, 16,31% by the municipality, 0,0009% others. 
30  http://www.konkurrensverket.se/t/Page____490.aspx 
31  http://www.sweden.gov.se/sb/d/9171 
32  Article 62, Chapter VII Municipal public services - 2005 Act on Local Self-Government 
33  www.mf.gov.si/slov/javnar/53646-ZJZP_EN.pdf 
 
 104supervision, organisation and management, maintenance, and provision of public services and 
other activities.  There are a lot of concession agreements for deliv ering different public services or services of 
general interest are concluded  at state level 1520 and at the local level: for health care and 
1575 for other services
35.  
 
SLOVAKIA 
 
At regional and municipal level, including smalle r municipalities, all types of service delivery 
methods are used. The following categories of local public services  delivery arrangements can be distinguished 
for purposes of our research: 
1. Direct production by the muni cipality and its employees, 
2. Municipal net budgetary organisations, 
3. Municipal firm (firms with more than 50% municipal share included), 
4. External supplier, 
5. Combination of four afor ementioned arrangements 
6. Other forms. 
 
Scale of external forms (contra cting-out) of delivery of select ed local public services in 
Slovak municipalities (% among all used service delivery methods) 
 
Service 2000 
 2005 
 2005  
 
Waste 49 64 69 
Cemeteries 27 12 16 
Public green areas 16 18 33 
Communications 21 41 45 
Public lighting 30 35 40 
 
Slovakia started to use the economic instrument of  “Public Private Partnership“ at the national 
level in 2009, in the sector of road building, so -called “speedily roads“  one level lower, as 
than highway/motorway. However, there have been PPP arrangements at local and regional 
level for a long time. 
 
   
                                                                                                                                                        
 
34  Article 2 defines PPP as a relationship involving private investment in public projects and/or public co-
financing of private projects that are in the public interest, and such a relationship is formed between public and 
private partners in connection with the construction, maintenance and operation of public infrastructure or other 
projects that are in the public intere st, and in connection with the associated provision of commercial and other 
public services or activities provided in a way and under the conditions app licable to commercial public services, 
or of other activities where their provision is in the public  interest, and of other investment of private or private 
and public funds in the construction of structures and facilitie s that are in part or entirely in the public interest, or 
in activities where their provision is in the public interest. 
35  Report on Public-Private partnership in Republic of Slovenia for year 2008 
 http://www.mf.gov.si/slov/jav_zas_partnerstvo/ Porocilo_jav_zas_part.pdf, page 29, 34. 
 
 105UNITED KINGDOM 
 
In the current UK system, the direct provision of services by the public sector is smaller than 
in the years 1940-1970. The public sector intervenes usually as an authority to define and regulate the service. SGIs are more provided und er a concession or PPP by the private sector, 
though most hospitals and schools (more than 90%) are in public sector management. 
A more profound transformation of  the public services  sector happened after 1987. A series of 
reforms made the scale of use of market-type-m echanisms much bolder and larger, intensified 
organisational and spatial decentralisation of the management and production of services. A 
law of 1988 required communities to proceed to  tender for a list of SGIs (Compulsory 
Competitive Tendering CCT)
36 on an increasing scale ev ery year. The 1999 Local 
Government Act abolished compulsory competitive tendering (CCT) for the provision of services in favour of a new regime of ‘best value authorities’ (which include, among others, 
local authorities, National Park authorities, po lice authorities, fire authorities, metropolitan 
county fire and civil defence authorities, wast e disposal authoritie s and metropolitan county 
passenger transport authorities).  
The Deregulation and Contracting Out Act ( 1994) defined the framework for the future 
evolution of the public sector and public services, the “marke ting” of some functions of 
ministerial departments and to complete this process for local communities
37. The Act 
removes obstacles to contracting out functions but does not require them to be contracted out. 
It is for individual ministers and statutory o ffice holders to determine the extent to which 
services are contracted out38. Excluded from the process of contracting out are such sensitive 
constitutional functions as the exercise of the judicial power of the State, the regulatory 
authority and the activities undermining fundamental freedoms.  Tendering continues to form one part of the gove rnment’s quest for value and efficiency in 
the provision of local author ity services. In 2005 the leve l of outsourcing of government 
services (purchase of goods and services vs  in-house provision) in United Kingdom was 
nearly 80%. But, 90% plus of (for instance) doctors, nurses,  teachers and so on are public 
sector employees who work in public sector organisations under public sector management 
and subject to political control of finance. In 2003-2004 about one-tenth of UK total capital investments in public services were through 
PPPs
39.  PPPs are governed by Partnership UK, unde r the supervision of  the Treasury. The 
Private Finance Initiative PFI , are the most common form, launched in 1992. Since their 
creation more than 700 pr ojects have been devel oped at local level (health40, education, 
transport) and more than 200 are expected between 2006- 2010. 
                                                 
36  For a review of the Conservatives’ 1998 Local Government Act, see David Parker, “The 1998 Local 
Government Act and Compulsory Competitive Tendering”, in Urban Studies, vol. 27, n° 5/October 1990, pp. 
653-667. Its impact was limited to certain blue-collar fu nctions like refuse collection and the results were very 
mixed as the system was subject to local political bias. 
37  Local Government Planning and Land Act (1980) and the Local Government Acts (1988, 1992) 
already forced local authorities to bring to market several services to the public and also the services they receive 
from officials, for example, the coll ection of garbage and trash, services  with professional character, etc. 
38  A contractor may be authorized to  carry out functions for a maximum of ten years (Section 69(5) a); 
the authorisation may be revoke any time(Section 69(5) b). 
39  OECD, Modernising government : the way forward, 2005, p. 141 
40  “The system [of PFI] nevertheless flourishes because it has the key attraction of reducing the 
government borrowing requirement. A publicly financed alternative which would be very likely to be cheaper is 
in practice not available because not constructed by the government. The PFI becomes the dominant way of 
financing hospitals by default, in the absence of any public sector option.” David Hall (PSIRU), Services of 
 
 106In a first phase, the NPM “revolution” invo lved in the UK, in particular, extensive 
privatisation, marketisation, and contractualisati on of public services. At the same time, new 
coexists with old; the “new public management ” till adheres to many of the values and 
aspirations of “old public administration”41.  
  
                                                                                                                                                        
 
general interest in Europe – an evidence-based approa ch, Written submission to European Parliament Committee 
on Economic and Monetary Affairs, 21 February 2001, www. psiru.org 
41  Gavin Drewry, « The United Kingdom System », in  K.K. Tummala (ed.), Co mparative Bureaucratic 
Systems, Lexington Books, 2005, p. 55.