Commission interpretative communication on concessions under Community law
Date: 2000-04-29
Institutions: European Commission
Subjects: administrative procedure, contract, public contract, type of business, works contract

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COMMISSION INTERPRETATIVE COMMUNICATION ON CONCESSIONS UNDER COMMUNITY LAW

(2000/C 121/02)

On 24 February 1999 the Commission adopted and published a Draft Commission interpretative
communication on concessions under Community law on public contracts (1) and submitted it to a
wide range of bodies for consultation. Taking into account
it has received
following publication of the initial draft in the Official Journal of the European Communities, the Commission
has adopted this interpretative communication.

the substantial

input (2)

1. INTRODUCTION

1. Concessions have long been used in certain Member States,
particularly to carry out and finance major infrastructure
projects such as railways and large parts of
the road
network.
the private sector has declined
since the first quarter of the 20th century as governments
began to prefer to be directy involved in the provision and
management of infrastructure and public services.

Involvement of

2. However due to budgetary restrictions and a desire to limit
the involvement of public authorities and enable the public
sector to take advantage of the private sector’s experience
and methods, interest in concessions has been heightened
over the last few years.

3. First of all, it should be pointed out that the Community
does not give preference to any particular way of organising
property, whether public or private: Article 295 (ex Article
222) of
the Treaty guarantees neutrality with regard to
whether enterprises are public or private.

law.

Indeed,

4. Given that this form of association with operators is being
used more and more frequently, particularly for major infra-
structure projects and certain services, the Commission feels
this interpretative communication is needed to keep the
operators concerned and the public authorities informed
of the provisions it considers apply to concessions under
current Community
the Commission is
repeatedly faced with complaints concerning infringements
of Community law on concessions when public authorities
have called on economic operators’ know-how and capital
to carry out complex operations.
It has thus decided to
define the concept of (cid:145)concessions(cid:146) and set out the guidelines
it has followed up to now when investigating cases. This
interpretative communication is therefore part of the trans-
parency required to clarify the current legal framework in
the light of the experience gained when investigating the
cases examined up to now.

5. In the draft version of this interpretative communication (3),
the Commission had stated that it also intended to deal with

the other forms of partnership used to call upon private-
sector financing and know-how. The Commission decided
not to consider the forms of partnership whose charac-
teristics are different
from those of a concession as
defined in this
interpretative communication. Such an
approach was also favoured in the input received. The
wide range of situations, which are in constant flux, as
revealed in the
interpretative
communication, calls for an indepth consideraton of the
characteristics they have in common. The discussion set
off by the publication of the draft interpretative communi-
cation must therefore continue on this matter.

feedback on the draft

6. The

on

comments

the
concessions
Commission to refine its analysis and define the charac-
teristics of
concessions which distinguish them from
public contracts, in particular the delegation of services of
general interest operated by this kind of partnership.

enabled

have

7. The Commission wishes to reiterate that this text does not
regimes deriving from
specific
seek to interpret
Directives adopted in different sectors, such as energy and
transport.

the

This interpretative communication (hereinafter referred to as
the (cid:145)communication(cid:146)) will specify the rules and the principles
of the Treaty governing all forms of concession and the specific
rules that Directive 93/37/EEC on public works contracts (4)
(hereinafter (cid:145)the works Directive(cid:146)) lays down for public works
concessions.

2. DEFINITION AND GENERAL PROBLEM OF CONCESSIONS

Concessions are not defined in the Treaty. The only definition
to be found in secondary Community law is in the works
Directive, which lays down specific provisions
for works
concessions (5). However, other forms of concessions do not
fall within the scope of the directives on public contracts (6).

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However, this does not mean that concessions are not subject
to the rules and principles of the Treaty. Indeed,
insofar as
these concessions result from acts of State, the purpose of
which is to provide economic activities or the supply of
the
goods,
Treaty and to the principles which derive from Court Case law.

to the relevant provisions of

they are subject

the scope of

In order to delimit
this communication, and
before specifying which regime applies to concessions, their
distinctive features must be described. To this end, a brief
review of the concept of works concessions as found in the
works Directive should prove useful.

2.1. WORKS CONCESSIONS

2.1.1. Definition as given in Directive 93/37/EEC

The Community legislator has chosen to base its definition of
works concessions on that of public works contracts.

The text of
the works Directive states that public works
contracts are (cid:145)contracts for pecuniary interest concluded in
writing between a contractor and a contracting authority
(. . .) which have as their object either the execution, or both
the execution and design, of works related to one of
the
activities referred to in Annex II or a work (. . .), or the
execution by whatever means of a work corresponding to
contracting authority(cid:146)
the
(Article 1(a)).

specified by the

requirements

authority, but acquires from it the right to obtain income from
the use of the structures built (7).

the
The right of exploitation also implies the transfer of
responsibilities of operation. These responsibilities cover the
financial and managerial matters relating to the
technical,
is the concessionaire who is
construction. For example,
it
it
responsible for making the investments required so that
to users. He is also
may be both available and useful
responsible for paying off
the
concessionaire bears not only the usual risks inherent in any
construction (cid:151) he also bears much of the risk inherent in the
management and use of the facilities (8).

the construction. Moreover,

considerations,

From these
in works
concessions, the risks inherent in exploitation are transferred
to the concessionaire (9).

follows

that,

it

The Commisison notes that more and more public works
contracts are the subject of complex legal arrangements (10).
As a result, the boundary between these arrangements and
public works concessions can sometimes be difficult to define.

In the Commission’s view, the arrangement is a public works
contract as understood under Community law if the cost of the
construction is essentially borne by the awarding authority and
the contractor does not receive remuneration from fees paid
directy by those using the construction.

the same Directive defines a public works
Article 1(d) of
concession as (cid:145)a contract of the same type as that indicated
in (a) except for the fact that the consideration for the works to
be carried out consists either solely in the right to exploit the
construction or in this right together with payment(cid:146).

According to this definition, the main distinctive feature of a
works concession is that a right to exploit a construction is
granted as a consideration for having erected it; this right may
also be accompanied by payment.

the user

The fact that the Directive allows for a payment in addition to
the right of exploitation does not change this analysis. Such
situations have occurred. The State therefore bears part of the
costs of operating the concession in order to keep prices down
(providing (cid:145)social prices(cid:146) (11)). A variety of
for
procedures are possible (guaranteed flat rate, fixed sum but
paid on the basis of the number of users, etc.). These do not
necessarily change the nature of the contract if the sum paid
covers only a part of the cost of the construction and of
operating it.

2.1.2. Distinction between the concepts of (cid:145)public works

contract(cid:146) and (cid:145)works concession(cid:146)

The Commission believes that the right of exploitation is a
criterion that reveals several characteristics which distinguish
a works concession from a public works contract.

The definition of a concession allows the State to make a
payment in return for work carried out, provided that that
this does not eliminate a significant element of
the risk
inherent
there may be
payment in addition to the right to exploit the construction,
the works Directive states that operation of the structure must
be the source of the concessionaire’s revenue.

in exploitation. By specifying that

For example, the right of exploitation allows the concessionaire
to demand payment from those who use the structure (e.g. by
charging tolls or fees) for a certain period of time. The period
for which the concession is granted is therefore an important
part of the remuneration of the concessionnaire. The latter
does not receive remuneration directly from the awarding

Even though the origin of the resources (cid:151) directly paid by the
user of the construction (cid:151) is,
in most cases, a significant
factor, it is the existence of exploitation risk, involved in the
investment made or the capital invested, which is the deter-
mining factor, particularly when the awarding authority has
paid a sum of money.

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However, even within public works contracts, part of the risk
may be borne by the contractor (12). However, the duration of
concessions makes these risks more likely to occur, and makes
them relatively greater.

On the other hand, risks arising from the operation’s financial
arrangements, which could be considered (cid:145)economic risks(cid:146), are
part and parcel of concessions. This type of risk is highly
dependent on the income the concessionaire will be able to
obtain from the amount of use of the construction (13) and is is
significant factor distinguishing concessions from public works
contracts.

the risks arising from the operation of

In conclusion,
the
concession are transferred to the concessionaire with the
right of exploitation; specific risks are divided between the
grantor and the concessionaire on a case by case basis,
according to their respective ability to manage the risk in
question.

If the public authorities undertake to bear the risk arising from
managing the construction by, for example, guaranteeing that
the financing will be reimbursed, there is no element of risk.
The Commission considers such cases to be public works
contracts, not concessions (14).

2.2. SERVICE CONCESSIONS

Article 1 of Directive 92/50/EEC on public service contract
(hereinafter referred to as the (cid:145)services Directive(cid:146)) states that
this Directive applies to (cid:145)public services contracts(cid:146), defined as
(cid:145)contracts for pecuniary interest concluded in writing between
a service provider and a contracting authority, to the exclusion
of (. . .)(cid:146).

Unlike the works Directive, the services Directive does not
define (cid:145)service concessions(cid:146) (15).

With the sole intention of distinguishing service concessions
from public services contracts, and therefore limit the scope of
the Communication, it is important to describe the essential
characteristics of concessions.

For this purpose, it would seem useful to work on the basis of
factors deriving from the above-mentioned concept of works
concessions which take into account the Court’s case law on
the subject (16) and the opinio juris (17).

Works concessions are assumed to serve a different purpose
from service concessions. This may lead to possible differences
in terms of investment and duration between the two types of
concessions. However, given the above criteria,
the charac-
teristics of concession contracts are generally the same,
regardless of their subject.

Thus, as with works concessions, the exploitation criterion is
vital for determining whether a service concession exists (18).
Application of this criterion means that there is a concession
when the operator bears the risk involved in operating the
service in question (establishing and exploiting the system),
obtaining a significant part of
from the user,
particularly by charging fees in any form. As is the case for
works concessions, the way in which the operator is remun-
erated is a factor which helps to determine who bears the
exploitation risk.

revenue

Similarly,
transfer of the responsibility of exploitation.

service concessions are also characterised by a

Lastly, service concessions normally concern activities whose
nature and purpose, as well as the rules to which they are
subject, are likely to be the State’s responsibility and may be
subject to exclusive or special rights (19).

It should also be pointed out that, in the Lottomatica judgment
mentioned above, the Court clearly distinguished between a
transfer of responsibility to the concessionaire as concerns
operating a lottery, which may be considered to be a respon-
sibility of the State as described above, and simply supplying
In that case it
to the administration.
computer
concluded that without such a transfer the arrangement was
a public contract.

systems

2.3. DISTINCTION BETWEEN WORKS CONCESSIONS AND SERVICE

CONCESSIONS

Given that only Directive 93/37/EEC provides for a special
system of procedures for granting public works concessions,
it is worth determining exactly what this type of concession is,
especially if it is a mixed contract which also includes a service
element. This is virtually always the case in practice, since
public works concessionaires often provide services to users
on the basis of the structure they have built.

As for delimiting the scope of the provisions in the works and
services Directives, recital 16 of the latter specifies that if the
works are incidental rather than the object of the contract they
do not justify treating the contract as a public works contract.
In the Gesti(cid:243)n Hotelera Internacional case the Court of Justice
interpreted these provisions and stated that (cid:145)where the works
[. . ] are merely incidental to the main object of the award, the
award, taken in its entirety, cannot be characterised as a public
works contract(cid:146) (20). The problem of mixed contracts was also
addressed by the Court of Justice in another case (21) which
determined that, when a contract
two elements
which may be separated (e.g. supplies and services), the rules
which apply to each should be applied separately.

includes

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Although these principles have been established for public
contracts, the Commission considers that a similar approach
should be taken to determine whether or not a concession is
subject to the works Directive. Its field of application ratione
materiae is effectively the same in the case of both works
contracts and works concessions (22).

In view of this, the Commission maintains that the first thing
to determine is whether the building of structures and carrying
out of work on behalf of
the grantor constitute the main
subject matter of
the contract, or whether the work and
building are merely incidental to the main subject matter of
the contract.

If the contract is principally concerned with the building of a
structure on behalf of the grantor, the Commission holds that
it should be considered to be a works concession.

In this case, the rules laid down by the works Directive must be
complied with, as long as the Directive’s applicaton threshold is
reached (EUR 5 000 000), even if some of
the aspects are
service-related. The fact that the works are performed or the
structures are built by third parties does not change the nature
of the basis contract. The subject matter of the contract is
identical.

In contrast, a concession contract in which the construction
work is incidental or which only involves operating an existing
structure is regarded as a service concession.

Moreover, in practice, operations may be encountered which
include building a structure or carrying out works at the same
time as the provision of services. Thus, alongside a public
works concession, service concessions may be concluded for
complementary activities which are, however, independent of
the exploitation of
the structure. For
the concession of
example, motorway catering services may be the subject of a
different service concession from that involving its construction
or management. In the Commission’s view, if the objects of
these contracts may be separated, the rules which apply to each
type should be applied respectively.

2.4. SCOPE OF THIS INTERPRETATIVE COMMUNICATION

the public

As already stated, even though concessions are not directly
addressed by
are
nonetheless subject to the rules and principles of the Treaty,
insofar as they are granted via acts that are attributable to the
State and their object is the provision of economic activities.

contracts directives,

they

Any act of State (23)
laying down the terms governing
economic activities, be it contractual or unilateral, must be

viewed in the light of the rules and principles of the Treaty, in
particular Articles 43 to 55 (ex Articles 52 to 66) (24).

This communication therefore concerns acts attributable to the
State whereby a public authority entrusts to a third party (cid:151) by
means of a contractual act or a unilateral act with the prior
consent of the third party (cid:151) the total or partial management
of
for which that authority would normally be
responsible and for which the third party assumes the risk.
Such services are convered by this communication only if
they constitute economic activities within the meaning of
Articles 43 to 55 (ex Articles 52 to 66) of the Treaty.

services

acts of State will henceforth be

These
referred to as
(cid:145)concessions(cid:146), regardless of their legal name under national law.

In view of the above, and without prejudice to any provisions
of Community law which might be applicable, this communi-
cation does not concern:

(cid:151) acts whereby a public authority authorises the exercice of
an economic activity even if these acts would be regarded
as concessions in certain Member States (25);

(cid:151) acts concerning non-economic activities such as obligatory

schooling or social security.

On the other hand, it should be noted that, when a concession
expires, renewal
is considered equivalent to granting a new
concession, and is therefore covered by the communication.

A particular problem arises in cases where are forms of inter-
organic delegation between the concessionaire and the grantor
which do not fall outside the administrative sphere of
the
contracting authority (26). The question of whether and to
what extent Community law applies to this kind of relationship
has been addressed by the Court (27). However, other cases
currently pending before the Court could introduce new
elements in this respect (28).

interest

economic

enterprises

On the other hand, relationships between public authorities
entrusted with the operation of
and public
services of general
in principle,
are,
covered by this communication (29). It is true that, according
to the Court’s established case law (30), nothing in the Treaty
prevents Member States from granting exclusive rights for
interest for non-economic public
certain services of general
interest reasons whereby those services are not subject
to
open competition (31). Nonetheless, the Court adds that the
way in which such a monopoly is organised and carried out
must not infringe the provisions of the Treaty on the free
movement of goods and services, nor
competition
rules (32). In addition, the way in which these exclusive rights
are granted are subject to the rules of the Treaty, and may
therefore be covered by this communication.

the

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3. REGIME APPLYING TO CONCESSIONS

As mentioned above, only works concessions for an amount
equal to or greater than the threshold specified in Directive
93/37/EEC (EUR 5 000 000) are subject to a specific regime.

provisions are nonetheless relevant, i.e. the rules instituting and
guaranteeing the proper operation of
the Single Market,
namely:

Nonetheless,
like any act of State laying down the terms
governing economic activities, concessions are subject to the
provisions of Articles 28 to 30 (ex Articles 30 to 36) and 43 to
55 (ex Articles 52 to 66) of the Treaty, and to the principles
emerging from the Court’s case law (33) (cid:151) notably the prin-
ciples of non-discrimination, equality of
trans-
parency, mutual recognition and proportionality (34).

treatment,

The Treaty does not restrict Member States’ freedom to grant
the methods used to do so are
concessions provided that
compatible with Community law.

The Court’s case law holds that, even if Member States remain
free under
the Treaty to lay down the substantive and
procedural rules, they must respect all the relevant provisions
of Community law, and particularly the prohibitions deriving
from the principles enshrined in the Treaty concerning right of
establishment and freedom to provide services (35). Moreover,
the Court emphasised the importance of the principles and
rules enshrined in the Tretay by specifying in particular that
the public procurement directives were intended to (cid:145)facilitate
the attainment within the Community of freedom of estab-
lishment and freedom to provide services(cid:146) and (cid:145)to ensure the
effectiveness of the rights conferred by the Treaty in the field of
public works and supply contracts(cid:146) (36).

States

thought

sometimes

Certain Member
that
have
concessions were not governed by the rules of the Treaty in
that they involved delegation of a service to the public, which
would be possible only on the basis of mutual trust (intuitu
personae). According to the Treaty and the Court’s established
case law, the only reasons which would enable State acts which
violate Articles 43 and 49 (ex Articles 52 and 59) of the Treaty
to escape prohibition under these Articles are those referred to
in Articles 45 and 55 (ex Articles 55 and 66). The very
restrictive conditions specified by the Court for the application
of these Articles are described below (37). There is nothing in
the Treaty or in the Court’s case law which implies that
concessions would be treated differently.

In what follows, the Commission will refer to the rules of the
Treaty and the principles deriving from Court case law that are
applicable to concessions covered by this communication.

3.1. THE RULES AND PRINCIPLES SET OUT IN THE TREATY OR

LAID DOWN BY THE COURT

As has already been stated above, the Treaty makes no specific
of its
mention of public contracts or concessions. Several

(cid:151) the rules prohibiting any discrimination on grounds of

nationality (Article 12(1) (ex Article 6(1)));

(cid:151) the rules on the free movement of goods (Articles 28 (ex
Article 30) et seq.), freedom of establishment (Articles 43
(ex Article 59) et seq.), freedom to provide services (Articles
49 (ex Article 59) et seq.) and the exceptions to those rules
provided for in Articles 30, 45 and 46 (ex Articles 36, 55
and 56) (38);

(cid:151) Article 86 (ex Article 90) of

the Treaty might help to

determine if the granting of these rights is legitimate.

These rules and principles arrived at by the Court are clarified
below.

is true that

the case law cited refers in part

to public
It
contracts. Nonetheless,
the principles which
the scope of
emerge from it often goes beyond public contracts. They are
therefore applicable to other situations, such as concessions.

3.1.1. Equality of treatment

According to the established case law of the Court (cid:145)the general
principle of equality of treatment, of which the prohibition of
discrimination on grounds of nationality is merely a specific
fundamental principles of
the
enunciation,
Community law. This principle requires that similar situations
shall not be
treated differently unless differentiation is
objectively justified(cid:146) (39).

is one of

Moreover the Court asserted that the principle of equality of
treatment, of which Articles 43 (ex 52) and 49 (ex 59) of the
Treaty are a particular expression,
(cid:145)forbids not only overt
discrimination by reason of nationality [. . .] but all covert
forms of discrimination which, by the application of other
criteria of differentiation, lead in fact to the same result(cid:146) (40).

the Court,

The principle of equality of treatment implies in particular that
all potential concessionaires know the rules in advance and
that they apply to everybody in the same way. The case law
in particular the Raulin (41) and Parliament/
of
Council (42)
judgments,
the principle of
equality of
treatment requires not only that conditions of
access to an economic activity be non-discriminatory, but
also that public authorities take all the measures required to
ensure the exercise of this activity.

lays down that

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The Commission considers that it follows from this case law
that the principle of open competition must be adhered to.

In the Storebaelt und Walloon Buses judgments, the Court has
the occasion to set out the scope of the principle of equality of
treatment in the area of public contracts, by asserting on the
one hand that this principle requires that all offers conform to
the tender specifications to guarantee an objective comparison
between offers (43) and, on the other hand, this principle is
violated, and transparency of the procedure impaired, when
an awarding entity takes account of changes to the initial
offers of one tenderer who thereby obtains an advantage
over his competitors. Moreover,
(cid:145)the
procedure for comparing tenders had to comply at every
stage with both the principle of
treatment of
tenderers and the principle of transparency, so as to afford
tenderers when formulating
equality of opportunity to all
their tenders(cid:146) (44).

the Court notes that

the equal

The Court has therefore specified in this case law concerning
application of the Directives that the principle of equality of
treatment between tenderers is quite separate from any possible
discrimination on the basis of nationality or other criteria.

The application of
this principle to concessions (which is
obviously only possible when the awarding authority negotiates
with several potential concessionaires) leaves the grantor free to
choose the most appropriate award procedure, for example by
reference to the characteristics of the sector in question, and to
lay down the requirements which candidates must meet
throughout the various phases of a tendering procedure (45).
However, this implies that the choice of candidates must be
made on the basis of objective criteria and the procedure must
be conducted in accordance with the procedural rules and basic
requirements originally set (46). Where these rules have not yet
the principle of equality of
been set,
treatment requires in any event that the candidates be chosen
objectively.

the application of

The following should therefore be considered to contravene the
above-mentioned rules of
the Treaty and the principle of
equality of
treatment: provisions reserving public contracts
only to companies of which the State or the public sector,
whether directly or indirectly, is a major, or the sole, share-
holder (47); practices allowing the acceptance of bids which do
not meet the specifications, or which have been amended after
being opened or allowing alternative solutions when this was
not provided for in the initial project. In addition the nature of
the initial project must not be changed during negotiation with
regard to the criteria and requirements laid down at
the
beginning of the procedure.

Furthermore, in certain cases, the grantor may be unable to
specifiy his requirements in sufficiently precise technical terms
look for alternative offers likely to provide various
and will

in order
to ensure
specifications must

solutions to a problem expressed in general terms. In such
and effective
fair
cases, however,
state
competition,
in a
always
the
non-discriminatory and objective manner what
is asked of
the candidates and above all the way in which they must
draw up their bids.
In this way, each candidate knows in
advance that he has the possibility of proposing various
technical solutions. More generally,
the specifications must
not contain elements that infringe the abovementioned rules
and principles of the Treaty. The requirements of the grantor
may also be determined in collaboration with companies in the
sector, provided that this does not restrict competition.

3.1.2. Transparency

The Commission points out that in its case law the Court has
trans-
emphasised the connection between the principle of
parency and the principle of equality of
treatment, whose
useful effect
it seeks to ensure in undistorted competitive
conditions (48).

The Commission notes that in virtually all the Member States
the administrative rules or practices adopted with regard to
the
concessions provide that bodies wishing to entrust
management of an economic activity to a third party must,
in order to ensure a minimum of transparency, make their
intention public according to appropriate rules.

As confirmed by the Court in its most recent case law, the
principle of non-discrimination on grounds of nationality,
implies that there is an obligation to be transparent so that
the contracting authority will be able to ensure it is adhered
to (49).

Transparency can be ensured by any appropriate means,
including advertising depending on, and to allow account to
be taken of, the particularities of the relevant sector (50). This
type of advertising generally contains the information necessary
to enable potential concessionaires to decide whether they are
interested in participating (e.g. selection and award criteria,
etc.). This includes the subject of
the concession and the
nature and scope of the services expected from the conces-
sionaire.

The Commission considers that, under these circumstances, the
obligation to ensure transparency is met.

3.1.3. Proportionality

The principle of proportionality is recognised by the estab-
lished case law of the Court as (cid:145)being part of the general
principles of Community law(cid:146) (51); it also binds national auth-
orities in the application of Community law (52), even when
these have a large area of discretion (53).

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The principle of proportionality requires that any measure
chosen should be both necessary and appropriate in the light
of the objectives sought (54). In choosing the measures to be
taken, a Member State must adopt those which cause the least
possible disruption to the pursuit of an economic activity (55).

strictly necessary in order to safeguard the interests which it
allows the Member States to protect(cid:146). Such exceptions must be
restricted to those activities referred to in Articles 43 and 49
(ex Articles 52 and 59), which in themselves involve a direct
of official
specific
and
authority (60).

connection with the

exercise

When applied to concessions,
this principle, which allows
contracting authorities to define the objective to be reached,
especially in terms of performance and technical specifications,
chosen be both
nonetheless
necessary and appropriate in relation to the objective set.

any measure

requires

that

Thus, for example, when selecting candidates, a Member State
may not impose technical, professional or financial conditions
which are excessive and disporportionate to the subject of the
concession.

stability be reconciled;

The principle of proportionality also requires that competition
and financial
the
limit open
concession must be set
competition beyond what
the
investment is paid off and there is a reasonable return on
invested capital (56), whilst maintaining a risk inherent
in
exploitation by the concessionaire.

required to ensure that

the duration of

it does not

so that

is

3.1.4. Mutual recognition

The principle of mutual recognition has been laid down by the
Court and gradually defined in greater detail in a large number
of judgments on the free circulation of goods, persons and
services.

According to this principle, a Member State must accept the
products and services supplied by economic operators in other
Community countries if the products and services meet in like
the recipient Member
manner
State (57).

the legitimate objectives of

that

in
The application of this principle to concessions implies,
the Member State in which the service is
particular,
provided must accept
specifications, checks,
the technical
diplomas, certificates and qualifications required in another
Member State if they are recognised as equivalent to those
required by the Member State in which the service is
provided (58).

3.1.5. Exceptions provided for by the Treaty

Restrictions on the free movement of goods, the freedom of
establishment and the freedom to provide services are allowed
only if they are justified by one of the reasons stated in Articles
30, 45, 46 and 55 (ex Articles 36, 55, 56 and 66) of the
Treaty.

With particular reference to Article 45 (ex Article 55) (which
allows restrictions on the freedom of establishment and the
freedom to provide services in the case of activities connected,
even occasionally, with the exercise of official authority), the
Court has on numerous occasions stressed (59) that (cid:145)since it
derogates from the fundamental rule of
freedom of estab-
lishment, Article 45 (ex Article 55) of the Treaty must be
interpreted in a manner which limits its scope to what is

Consequently, the exception included in Article 45 (ex Article
55) must apply only to cases in which the concessionairs
directly and specifically exercises official authority.

This exception therefore does not automatically apply to
activities carried out by virtue of an obligation or an exclusivity
established by law or qualified by the national authorities as
being in the public interest (61).
It is true that any activity
delegbated by the public authorities normally has a conno-
tation of public interest, but
this stil does not mean that
such activity necessarily involves exercising official authority.

As an example, the Court of Justice dismisses application of the
exception under Article 45 (ex Article 55) on the basis of
findings such as:

(cid:151) the activities transferred remained subject to supervision by
the official authorities, which had at their disposal appro-
priate means for ensuring the protection of the interests
entrusted to them (62),

(cid:151) the activities transferred were of a technical nature and
therefore not connected with the exercise of official
authority (63).

As stated above, the principle of proportionality requires that
any measure restricting the exercise of the freedoms provided
for in Articles 43 and 49 (ex Articles 52 and 59) should be
both necessary and appropriate in the light of the objectives
pursued (64). This implies, in particular, that in the choice of
the measures for achieving the objective pursued, the Member
State must give preference to those which least restrict the
exercise of these freedoms (65).

Furthermore, with regard to the freedom to provide services,
the host Member State must check that the interest to be safe-
guarded is not safeguarded by the rules to which the applicant
is subject in the Member State where he normally pursues his
activities.

3.1.6. Protection of the rights of individuals

In consistent case law on the fundamental freedoms guaranteed
by the Treaty, the Court has stated that decisions to refuse or
reject must state the reasons and must be open to judicial
appeal by the affected parties (66).

stated,

These requirements are generally applicable since, as the Court
has
traditions
they derive from the constitutional
common to the Member States
and enshrined in the
European Convention on Human Rights (67).

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They are therefore also applicable to individuals who consider
that they have been harmed by the award of a concession
within the meaning of the communication.

the concessionaire is an awarding authority within the
If
meaning of the Directive, the contracts for such works must
be awarded in full
the Directive’s
provisions on public works contracts (70).

compliance with all

3.2. SPECIFIC PROVISION OF DIRECTIVE 93/37/EEC ON WORKS

CONCESSIONS

The Commission considers it worthwhile to point out that the
rules and principles explained above are applicable to works
concessions. However, Directive 93/37/EEC also provides a
specific system for these which includes, among other things,
advertising rules.

It goes without saying that, for concessions whose value is
below the threshold laid down by Directive 93/37/EEC, only
the rules and principles of the Treaty are applicable.

3.2.1. The upstream phase: choice of concessionaire

If the concessionaire is not an awarding authority, the Directive
stipulates that he must comply only with certain advertising
rules. However, these rules are not applicable when the conces-
to affiliated undertakings
sionaire awards works contracts
within the meaning of Article 3(4) of
the Directive. The
Directive also stipulates that a comprehensive list of such
firms must be enclosed with the application for the concession
and must be updated following any subsequent changes in the
relationship between firms. Since this list is comprehensive, the
concessionaire may not cite the non-applicability of the adver-
tising rules as grounds for awarding a works contract to a firm
which does not figure on the abovementioned list.

Consequently the concessionaire is always obliged to make
known his intention to award a works contract to a third
party whether or not he is an awarding authority.

3.2.1.1. Rules on advertising and transparency

Journal of

Awarding authorities must publish a concession notice in the
the European Communities according to the
Official
model laid down in Directive 93/37/EEC to put the contract
up for competition at the European level (68).

Lastly, the Commission considers that a Member State is in
breach of
the provisions of Directive 93/37/EEC on works
carried out by third parties if, without any invitation to
it uses as an intermediary a firm with which it is
tender,
linked to award works contracts to third-party firms.

A problem encountered by the Commission involves the award
of concessions between public entities. Some Member States
seem to consider that the provisions of Directive 93/37/EEC
applicable to works concessions do not apply to contracts
concluded between a public authority and a legal person
governed by public law.

Nevertheless, Directive 93/37/EEC requires a preliminary adver-
tisement for all contracts for public works concessions, irres-
pective of whether the potential concessionaire is private or
public. Furthermore, Article 3(3) of Directive 93/37/EEC
expressly states that
the
awarding authorities covered by the directive, which implies
that this type of relation is subject to publication in accordance
with Article 3(1) of the same directive.

the concessionaire can be one of

3.2.1.2. Choice of type of procedure

As far as works concessions are concerned, the grantor is free
to choose the most appropriate procedure, and in particular to
begin negotiated procedures.

3.2.3. Rules applicable to review

Article 1 of Directive 89/665/EEC provides that (cid:145)Member States
shall take the necessary measures to ensure that [. . .] decisions
taken by the contracting authorities may be reviewed effectively
and, in particular, as rapidly as possible(cid:146) in the conditions set
out in the Directives, (cid:145)on the grounds that such decisions have
infringed Community law in the field of public procurement or
national rules implementing that law(cid:146).

This
provision
concessions (71).

of

the Directive

applies

to works

The Commission also draws attention to the requirements of
Article 2(7) of Directive 89/665/EEC, which stipulates that (cid:145)the
Member States shall ensure that decisions taken by bodies
responsible for review procedures can be effectively enforced.(cid:146)

This implies that the Member States must not take any material
or procedural measures which might render ineffektive the
mechanisms introduced by this Directive.

3.2.2. The downstream phase: contracts awarded by the

contract holder (69)

Directive 93/37/EEC lays down certain rules on contracts
awarded by public works concessionaires for works for a
value of EUR 5 000 000 or more. However,
they vary
according to the type of concessionaire.

As
in
for concessionaires who are awarding authorities,
addition to the obligations already mentioned above, public
contracts awarded by them are subject to the obligation to
state reasons laid down in Article 8 of Directive 93/37/EEC,
which makes it compulsory for the awarding authority to give
the reasons for its decision within fifteen days, and to the
review procedures provided for by Directive 89/665/EEC.

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3.3. CONCESSIONS IN THE UTILITIES SECTORS

Directive 93/38/EEC on contracts awarded by entities operating
in the water, energy, transport and telecommunications sectors
(hereinafter referred to as the (cid:145)utilities Directive(cid:146)) does not have
any specific rules either on works concessions or on service
concessions.

In deciding which rules apply,
the
grantor as well as his activity are therefore decisive elements.
There are several possible situations.

the legal personality of

In the first case,
the State or other public authority not
operating specifically in one of the four sectors governed by
the utilities Directive awards a concession involving an
economic activity in one of these four sectors. The rules and
principles of the Treaty described above apply to this award, as
does the works Directive if it is a works concession.

and principles of the Treaty are applicable, since the works
Directive does not cover concessions granted by an entity
operating specifically in one of the four sectors governed by
Directive 93/38/EEC.

if the grantor is a private entity,

Lastly,
either the rules or the principles described above (72).

it is not subject to

this
The Commission is confident
communication will help to clarify the rules of the game and
to open up markets to competition in the field of concessions.

the publication of

that

Moreover, the Commission wishes to emphasise that the trans-
parency which the publication of this communication provides
in no way prejudices possible future proposals for legislation
on concessions,
if this becomes necessary to reinforce legal
certainty.

In the second case, a public authority operating specificially in
one of
the four sectors governed by the utilities Directive
decides to grant a concession. The rules and principles of the
Treaty are therefore applicable insofar as the grantor is a public
entity. Even in the case of a works concession, only the rules

Lastly,
the Court, which currently has preliminary matters
before it (73), may further clarify elements deriving from the
rules of the Treaty, the Diretives and case law. This communi-
cation may therefore be supplemented in due course in order
to take these new elements into account.

(1) OJ C 94, 7.4.1999, p. 4.

(2) The Commission wishes to thank the economic operators, representatives of collective interests, public authorities and individuals whose input

helped to improve this communication.

(3) See point 2.1.2.4 of the Commission communication on public procurement in the European Union, COM(98) 143, adopted on 11 March 1998.

(4) Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199,

9.8.1993, p. 54).

(5) Council Directive 93/37/EEC, mentioned above.

(6) Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ L 209,
24.7.1992, p. 1). Council Directive 93/36/EEC of 14 July 1993 coordinating procedures for the award of public supply contracts (OJ L 199,
9.8.1993, p. 1). Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy,
transport and telecommunications sectors (OJ L 199, 9.8.1993, p. 84).

(7) The best-known example of a public works concession is a contract whereby a State grants a company the right to build and exploit a motorway

and authorises it to earn revenue by charging tolls.

(8) Verification will have to be on a case by case basis, taking account of various elements such as the subject matter, duration and the amount of the
contract, the economic and financial capacity of the concessionaire, as well as any other useful element which helps establish that the
concessionaire effectively carries risk.

(9) If recovery of expenditure were guaranteed by the awarding authority without the risk involved in the management of the construction, there
would be no element of risk and the contract should be regarded as a works contract rather than a concession contract. Moreover, if the
concessionaire receives whether directly or indirectly during the course of the contract or even when the contract comes to an end, payment (by
way of reimbursement, covering losses etc.) other than connected with exploitation, the contract could no longer be regarded as a concession. In
this situation, the compatibility of any subsequent financing should be considered in the light of any relevant Community law.

(10) For example, the Commission has already been faced with cases where a consortium composed of contractors and banks undertook to carry out a
project to meet the needs of the awarding authority, in exchange for reimbursement by the awarding authority of the loan taken out by the
contractors with the banks, together with a profit for the private partners. The Commission interpreted these as public works contracts since the
consortium did not undertake any exploitation, and therefore bore no attendant risk. The Commission came to the same conclusion in another
case where, although the private partner carrying out the work was ostensibly exploiting the construction, the public authority had in fact
guaranteed that he would receive compensation. The terms of this guarantee were such that the public authority in effect bore the exploitation
risks.

(11) For example, if the toll for a motorway is set by the State at a level which does not cover operating costs.

(12) For example, risks arising from changes in legislation during the life of the contract (such as changes in environmental protection which make it
necessary to modify the construction, or changes in tax law which disrupt the financial arrangements in the contract) or the risk of technical
obsolescence. Moreover, this type of risk is more likely to arise in the context of concessions, bearing in mind that these normally extend over a
relatively long period of time.

(13) It should be noted that economic risk exists where income depends on the amount of use. This holds true even in the case of a nominal toll, i.e.

one borne by the grantor.

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(14) In a case investigated by the Commission, although the private partner was ostensibly exploiting the construction, the public authority had
guaranteed that he would receive compensation. The terms of this guarantee were such that the public authority in effect bore the exploitation
risks.

(15) The absence of a reference to the concept of service concessions in the services Directive calls for some comment. Although, when preparing this
Directive, the Commission had proposed including a special arrangement for this type of concession similar to the existing arrangement for works
concessions, the Council did not accept this proposal. The question of wheather the granting of service concessions falls entirely under the
arrangements introduced by the services Directive was therefore raised. As specified above, this Directive applies to (cid:145)contracts for pecuniary
interest concluded in writing between a service provider and a contracting authority(cid:146), with certain exceptions which are described in the Directive
and which do not include concession contracts.
A literal interpretation of this definition, followed by certain authors, could lead to inclusion of concession contracts within the scope of the
services Directive, since these are for pecunciary interest and concluded in writing. This approach would mean that the granting of a service
concession would have to comply with the rules set out in this Directive, and would hence be subject to a more complex procedure than works
concessions.
However, in the absence of Court case law on this point, the Commission has not accepted this interpretation in the actual cases it has had to
investigate. A preliminary matter pending before the Court raises the question of the definition of service concessions and the legal arrangements
which apply to them (Case C-324/98 Telaustria Verlags Gesellschaft mbH v. Post & Telekom Austria (Telaustria)).

(16) Judgment of 26 April 1994, Case C-272/91 Commission v. Italy (Lottomatica), ECR I-1409.
(17) Conclusions of Advocate-General La Pergola in Case C-360/96. Arnhem.

Conclusions of Advocate-General Alber in Case C-108/98, RI.SAN Srl v. Comune d’Ischia.

(18) In its judgment of 10 November 1998 in Case C-360/98 (Arnhem), para. 25, the Court concluded that it could not be a public service concession
on the grounds that the remuneration consisted solely of a sum paid by the public authority and not of the right to operate the service.
(19) Conclusions of the Advocate-General in the Arnhem case; Conclusions of the Advocate-General in the RI.SAN Srl case; both referred to above.
(20) Judgment of 19 April 1994, case C-331/92, Gesti(cid:243)n Hotelera, ECR I-1329.
(21) Judgment of 5 December 1989, Case C-3/88, Data Processing, ECR, p. 4035.
(22) Moreover, the Court has already applied the same principle in order to delimit supply contracts and services in its judgment of 18 November

1999 on Case C-107/98, Teckal Srl v. Comune di Viano and AGAC di Reggio Emilia (Teckal).

(23) In the largest sense, i.e. the acts adopted by all public bodies belonging to the organisation of the State (local authorities, regions, departments,
autonomous communities, municipalities) as well as any other entity which, even if it has its own legal existence, is linked to the State in such a
tight manner that it is to be considered to be part of the State’s organisation. The notion of acts of State also comprises acts which are attributable
to the State, that is acts for which the public authorities are responsible, even though not adopted by them, given that the authorities can
intervene to prevent their adoption or impose amendments.

(24) A similar line of reasoning should be followed for supply concessions, which must be viewed in the light of Articles 28 to 30 (ex Articles 30 to

36) of the Treaty.

(25) For example, taxi concessions, authorisations to use the public highway (newspaper kiosks, cafØ terraces), or acts relating to pharmacies and filling

stations.

(26) Similar to (cid:145)in-house(cid:146) relationships. The latter issue was first analysed by Advocates-General La Pergola (in the Arnhem case referred to above),

Cosmas (in the Teckal case referred to above) and Alber (in the RI.SAN case referred to above).

(27) In the abovementioned Teckal case, the Court laid down that, for Directive 93/36/EEC to apply, (cid:145)it is, in principle, sufficient if the contract was
concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority(cid:146), and added (cid:145)The
position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which
it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local
authority or authorities(cid:146) (recital 50).

(28) Cases C-94/99 ARGE and C-324/98 Telaustria referred to above.
(29) In the audiovisual sector, account should be taken of the Protocol on the system of public broadcasting in the Member States, annexed to the

Treaty of Amsterdam, amending the Treaty on European Union (in force since 1 May 1999).

(30) Judgments of 30 April 1974, Case 155/73, Sacchi, and of 18 June 1991, Case C-260/89, Elleniki Radiophonia.
(31) Elleniki Radiophonia judgment mentioned above, point 10.
(32) Elleniki Radiophonia judgment mentioned above, point 12.
(33) It is worth pointing out that in the transport sector, the relevant rules on freedom to provide services are set out in Article 51 (ex Article 61)
which refers to Articles 70 to 80 (ex Articles 74 to 84) of the Treaty. This is without prejudice to the fact that as the Court has consistently held,
the general principles of Community law are applicable to the sector (see the judgments of 4 April 1974, Case C-167/73, Commission v. France, of
30 April 1986. Joined Cases 209/84 and 213/84, MinistŁre Public v. ASJES e. al., of 17 May 1994, Case C-18/93, Corsica ferries, of 1 October
1998, Case C-38/97 Autotrasporti Librandi snc v. Cuttica).
Moreover, transport services by rail, road and inland waterway are covered by Regulation (EEC) No 1191/69, as amended by Regulation (EEC) No
1893/91, which set out the mechanisms and procedures that public authorities can employ to ensure that their objectives for public transport are
met.

(34) Obviously, acts and behaviour of the concessionaire to the extent that these are attributable to the State within the meaning of the case law of the

Court of Justice are governed by the above rules and principles.
(35) Judgment of 9 July 1987 Joint Cases 27/86; 28/86 and 29/86, Bellini.
(36) Judgments of 10 March 1987, Case 199/85, Commission v. Italy, and of 17 November 1993, Case C-71/92, Commission v. Spain.
(37) Lottomatica judgment mentioned above. In this judgment, the Court of Justice ruled that, in view of the facts, the tasks of the concessionaire were

limited to activities of a technical nature and, as such, were subject to the provisions of the Treaty.

(38) The Commission points out that restrictive but non-discriminatory measures are contrary to Articles 43 (ex Article 52) and 49 (ex Article 59) of
the Treaty if they are not motivated by overriding reasons of public interest worth protecting. This is the case when the measures are neither
appropriate nor necessary for achieving the objective in question.

(39) Judgment of 8 October 1980. Case 810/79, (cid:220)bersch(cid:228)r.

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(40) Judgment of 13 July 1993, Case C-330/91, Commerzbank; also see Judgment of 3 February 1982, Joined Cases 62 and 63/81, Seco and

Desquenne.

(41) Judgment of 26 February 1992, Case C-357/89.

(42) Judgment of 7 July 1992, Case C-295/90.

(43) Judgment of 22 June 1993, Case C-243/89, Storebaelt, point 37.

(44) Judgment of 25 April 1996, Commission v. Belgium, Case C-87/94. Walloon Buses. See also Judgment of the Court of First Instance (hereinafter

referred to as the (cid:145)CFI(cid:146)) of 17 December 1998, T-203/96, Embassy Limousines & Services.

(45) In this respect, it is worth emphasising that this Communication does not prejudge the interpretation of specific transport rules provided for by

the Treaty at in current or future regulations.

(46) Thus, for example, even if the specifications provide for the possibility for candidates to make technical improvements to the solutions proposed
by the awarding authority (and this will often be the case for complex infrastructure projects), such improvements may not relate to the basic
requirements of a project and must be delimited.

(47) Data processing, judgment mentioned above, point 30.

(48) Walloon Buses Judgment, referred to above, point 54.

(49) Judgment of 18 November 1999, Case C-275/98, Unitron Scandinavia, point 31.

(50) Transparency can be ensured, among other means, by way of publishing a tender notice, or pre-information notice in the daily press or specialist

journals or by posting appropriate notices.

(51) Judgment of 11 July 1989, Case 265/87, Schr(cid:246)der, ECR p. 2237, point 21.

(52) Judgment of 27 October 1993, Case 127/92, point 27.

(53) Judgment of 19 June 1980, Joined Cases 41/79, 121/79 and 796/79, Testa et al., point 21.

(54) This is for example the case concerning the obligation to achieve a high level of environmental protection regarding application of the

precautionary principle.

(55) See for example the judgment of 17 May 1984, Case 15/83, Denkavit Netherlands or the judgment of the CFI of 19 June 1997, Case T-260/94, Air

Inter SA, point 14.

(56) Cf. the CFI’s recent case law according to which the Treaty is applicable (cid:145)when a measure adopted by a Member State constitutes a restriction of
the freedom of establishment of nationals of other Member States on its territory and at the same time provides advantages to an enterprise by
granting it an exclusive right, unless the aim of the measure taken by the State is legitimate and compatible with the Treaty and is permanently
justified by overriding considerations of general interest [. . .](cid:146). In such cases, the CFI adds that (cid:145)it is necessary that the measure taken by the State
be suited to ensuring the objective it is pursuing is achieved, and does not go beyond what is required to achieve that objective.(cid:146) (Judgment of 8
July 1999, Case T-266/97, Vlaamse Televisie Maatschappij NV, point 108).

(57) This principle derives from case law relating to freedom of establishment and freedom to provide services (in particular in the Vlassopoulou
Judgment of 7 May 1991 (Case C-340/89) and the Dennemeyer Judgment of 25 July 1991 (Case C-76/90). In the first Judgment, the Court of
Justice found that (cid:145)even if applied without any discrimination on the basis of nationality, national requirements concerning qualifications may have
the effect of hindering nationals of the other Member States in exercising their right of establishment guaranteed to them by Article 43 (ex Article
52) of the EC Treaty. That could be the case if the national rules in question took no account of the knowledge and qualifications already acquired
by the person concerned in another Member State.(cid:146) In the Dennemeyer Judgment the Court stated in particular that (cid:145)a Member State may not
make the provision of services in its territory subject to compliance with all the conditions required for establishments and thereby deprive of all
practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services.(cid:146) Lastly, in the Webb
case (of 17 December 1981, Case 279/80), the Court added that the freedom to provide services requires that (cid:145)[. . .] the Member States in which
the service is provided [. . .] takes into account the evidence and guarantee already produced by the provider of the services for the pursuit of his
activities in the Member State in which he is established.(cid:146)

(58) For example, the Member States in which the service is provided must accept the equivalent qualifications already acquired by the service provider
in another Member State which attest to his professional, technical and financial capacities. Apart from applying the technical harmonisation
directives, agreements on mutual recognition of voluntary certification systems can constitute proof that the qualifications of enterprises are
equivalent; these agreements can be based on accreditation, which provide proof that the conformity assessment body is competent.

(59) Judgment of 15 March 1988, Case 147/86, Commission v. Greece.

(60) Judgment of 21 June 1974, Case 2/74, Reyners.

(61) Conclusions of Advocate-General Mischo in Case C-3/88, Data Processing, referred to above.

(62) Judgment of 15 March 1988, Case 147/86, referred to above.

(63) Cases C-3/88 and C-272/91, Data Processing and Lottomatica, referred to above.

(64) Case T-260/94, Air Inter SA, referred to above. For example, the Court rejected the application of the exception relating to public policy when it
was supported by insufficient reasons and the objective could be achieved by other means which did not restrict freedom of establishment or
freedom to provide services (recital 15 of the Judgment C-3/88, Data Processing, referred to above.)

(65) Judgment of 28 March 1996, Case C-272/94, Guiot/Climatec.

(66) Judgment of 7 May 1991, Case C-340/89, Vlassopoulou, point 22.

(67) Judgment of 15 October 1987, Case 222/86, Heylens, point 14.

(68) (cid:145)In order to meet the Directive’s aim of ensuring development of effective competition in the award of public works contracts, the criteria and
conditions which govern each contract must be given sufficient publicity by the authorities awarding contracts(cid:146) (Judgment of 20 September 1988,
Case 31/87, Beentjes, point 21).

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(69) It should be reiterated that, under Article 3(2) of the Directive, the contracting authority may require the concessionaire to award to third parties
contracts representing a minimum percentage of the total value of the work. The contracting authority may also request the candidates for
concession contracts to specify this minimum percentage in their tenders.

(70) This is also the case for service concessionaires who are awarding authorities under these Directives. The provisions of the Directives apply to

procedures to award concession contracts.

(71) In this context, it should be noted that Advocate-General Elmer, in Case C-433/93, Commission v. Germany, found that according to the case law
of the Court (the Judgments of 20 September 1988, in Case 31/87, Beentjes, and 22 June 1989, in Case 103/88, Constanzo) (cid:145)the Directives on
public contracts confer on individuals rights which they may exercise, in certain conditions, directly before the national courts, vis-(cid:224)-vis the State
and awarding authorities(cid:146). The Advocate-General also maintainted that Directive 89/665/EEC, adopted after this judgment, did not seek to restrict
the rights which case law confers on individuals vis-(cid:224)-vis public authorities. On the contrary, the Directive sought to reinforce (cid:145)the existing
arrangements at both national and Community levels . . . particularly at a stage when infringements can be corrected(cid:146) (second recital of Directive
89/665/EEC).

(72) Nonetheless, insofar as the concessionaire has exclusive or special rights for activities governed by the Utilities Directive, he must comply with this

Directive’s rules on public contracts.

(73) For example, the Telaustria case referred to above.

Prior notification of a concentration

(Case COMP/M.1961 (cid:151) NHS/MWCR)

(2000/C 121/03)

(Text with EEA relevance)

1.
On 18 April 2000 the Commission received notification of a proposed concentration pursuant to
Article 4 of Council Regulation (EEC) No 4064/89 (1), as last amended by Regulation (EC) No 1310/97 (2),
by which the undertakings Nuova Holding Subalpina SpA (NHS), belonging to the Sanpaolo/IMI Group,
and the MWCRLux Sarl, controlled by Schroders Group, acquire, within the meaning of Article 3(1)(b) of
the Regulation, joint control of the Italian company MWCR SpA, by way of purchase of assets.

2.

The business activities of the undertakings concerned are:

(cid:151) NHS: retail banking and financial services,

(cid:151) MWCRLux Sarl: retail banking and financial services.

On preliminary examination, the Commission finds that the notified concentration could fall within

3.
the scope of Regulation (EEC) No 4064/89. However, the final decision on this point is reserved.

The Commission invites interested third parties to submit

4.
proposed operation.

their possible observations on the

Observations must reach the Commission not later than 10 days following the date of this publication.
Observations can be sent by fax (No (32-2) 296 43 01 or 296 72 44) or by post, under reference
COMP/M.1961 (cid:151) NHS/MWCR, to:

European Commission,
Directorate-General for Competition,
Directorate B (cid:151) Merger Task Force,
Avenue de Cortenberg/Kortenberglaan 150,
B-1040 Brussels

(1) OJ L 395, 30.12.1989, p. 1; corrigendum: OJ L 257, 21.9.1990, p. 13.
(2) OJ L 180, 9.7.1997, p. 1; corrigendum: OJ L 40, 13.2.1998, p. 17.