Keywords

Summary



Keywords

1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Public service contract – Service concession – Distinguishing criteria

(European Parliament and Council Directive 2004/18, Art. 1(2)(a) and (d) and (4))

2. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Service concession – Concept

(Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Art. 1(2)(d) and (4))

Summary

1. It follows from a comparison of the definitions of a public service contract and a service concession provided, respectively, by Article 1(2)(a) and (d) and by Article 1(4) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, that the difference between a public service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration which, although it is not the only consideration, is paid directly by the contracting authority to the service provider, while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment.

In the case of a contract for the supply of services, the fact that the supplier is not remunerated directly by the contracting authority, but is entitled to collect payment from third parties, meets the requirement of consideration laid down in Article 1(4) of Directive 2004/18. While the method of remuneration is, therefore, one of the determining factors for the classification of a service concession, the service concession implies that the service supplier takes the risk of operating the services in question and that the absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession. In order to find that there is a service concession, it is necessary to establish whether the agreed method of remuneration takes the form of the right of the service provider to exploit the service and entails it taking the risk of operating the service in question. While that risk may, at the outset, be very limited, it is necessary for classification as a service concession that the contracting authority transfer to the concession holder all or, at least, a significant share of the risk which it faces.

(see paras 24-26, 29)

2. Article 1(2)(d) and (4) of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, when the economic operator selected is fully remunerated by persons other than the contracting authority which awarded the contract concerning rescue services, when it runs an operating risk, albeit a very limited one, by reason, inter alia, of the fact that the amount of the usage fees in question depends on the result of annual negotiations with third parties, and when it is not assured full coverage of the costs incurred in managing its activities in accordance with the principles laid down by national law, that contract must be classified as a ‘service concession’ within the meaning of Article 1(4) of that directive.

The fact that the amount of the usage fees is not determined unilaterally by the provider of the rescue services, but by agreement with the social security institutions which themselves have the status of a contracting authority, and that those fees are not paid directly by the users of those services to the selected provider but through a central settlement office in charge of collecting and remitting those fees, by regular payments on account, does not affect that finding. The fact remains that all the remuneration obtained by the provider of the services comes from persons other than the contracting authority which awarded it the contract.

In that regard, while as Union law now stands, service concession contracts are not governed by any of the directives by which the Union legislature has regulated the field of public procurement, the public authorities concluding them are nevertheless bound to comply with the fundamental rules of the Treaty on the Functioning of the European Union, including Articles 49 TFEU and 56 TFEU, and with the consequent obligation of transparency, when – this being a matter for the referring court to determine – the contract concerned has a certain transnational dimension.

(see paras 28, 48-49, operative part)