Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the award of concession contracts
Date: 2011-12-20
Institutions: European Commission
Subjects: administrative transparency, award of contract, freedom to provide services, invitation to tender, principle of legal certainty, service concession, single market, subcontracting, technical barriers to trade, tendering, works contract

EUROPEAN COMMISSION 

Brussels, 20.12.2011 
COM(2011) 897 final 

2011/0437 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the award of concession contracts 

(Text with EEA relevance) 

{SEC(2011) 1588 final} 
{SEC(2011) 1589 final} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The  Commission  announced  the  intention  to  adopt  a  legislative  initiative  on 
concessions in its communication The Single Market Act Twelve levers to boost growth 
and strengthen confidence of 13 April 2011. 

The  award  of  works  concessions  is  presently  subject  to  a  limited  number  of 
secondary law provisions, while service concessions are covered only by the general 
principles of the TFEU. This loophole gives rise to serious distortions of the internal 
market,  in  particular  limiting  access  by  European  businesses,  especially  small  and 
medium-sized  enterprises,  to  the  economic  opportunities  offered  by  concession 
contracts. The lack of legal certainty also results in inefficiencies.  

The  present  initiative  aims  to  reduce  the  uncertainty  surrounding  the  award  of 
concessions contracts, and thereby benefit public authorities and economic operators. 
EU  law  does  not  restrict  a  contracting  authority  or  entity's  freedom  to  perform  the 
public interest tasks falling within its remit by using its own resources, but when a 
contracting authority decides to call on an outside entity to carry out such tasks, all 
EU economic operators must be granted effective access to the market.  

In the context of severe budgetary constraints and economic difficulties in many EU 
Member  States,  efficient  allocation  of  public  funds  is  of  particular  concern.  An 
adequate legal framework for the award of concession contracts would favour public 
and  private  investment  in  infrastructure  and  strategic  services  at  best  value  for 
money.  The  potential  of  a  legislative  initiative  on  concession  contracts  to  create  a 
supportive  EU  framework  for  PPPs  was  singled  out  in  the  Commission's  2009 
communication  on  Mobilising  private  and  public  investment  for  recovery  and  long 
term structural change: developing public private partnerships. 

This  draft  is  being  put  forward  in  tandem  with  the  revision  of  Public  Procurement 
Directives.1 It will result in the adoption of a separate legal instrument regulating the 
award  of  concesssions  which,  together  with  the  two  proposals  to  revise  Public 
Procurement  Directives  (2004/17/EC  and  2004/18/EC),  aims  at  creating  a  modern 
public procurement legislative framework.  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENT 

Between 12 May and 9 July 2010, the Commission held a public online consultation 
open to the general public. Between 5 August and 30 September 2010 another public 
consultation  targeting  the  business  community,  social  partners  and  contracting 
entities was held. The consultations confirmed that  the lack of legal certainty caused 
problems  and  they  demonstrated  the  obstacles  that  companies  face  with  regard  to 
market access. They also suggested that appropriate EU action should be taken. The 

1 

COM(2010) 608 final, point 1.4, proposal nº 17. 

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results 
http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm 

found 

can 

be 

at 

These conclusions have been corroborated by a number of bilateral meetings with the 
representatives of Member States, at local level, with businesses active in the sectors 
concerned and with industry associations. 

The  information  gathered  during  the  consultations  fed  into  the  Impact  Assessment 
Report, which was examined and accepted by the Impact Assessment Board on 21st 
March 2011. The Impact Assessment Board made recommendations on providing, in 
particular, additional evidence on the scale of the problems, the consequences of the 
distortions  found,  the  differences  in  treatment  between  public  contracts  and 
concessions and on strengthening the impact analysis and the comparison of options. 
These  recommendations  were  taken  into  account  in  the  re-submitted  version  of  the 
Impact  Assessment.  The  Impact  Assessment  Board's  opinions  on  the  report  have 
been  published  together  with  this  proposal,  the  final  Impact  Assessment  report  and 
the executive summary of the report.  

The report confirmed the need for new legislation. It found that economic operators 
are  faced  with  an  unlevel  playing  field,  which  often  leads  to  missed  business 
opportunities.  This  situation  gives  rise  to  costs  and  is  detrimental  to  competitors 
located in other Member  States, contracting authorities and contracting entities and 
consumers. Moreover, both the definition of concessions and the precise content of 
the  obligations  of  transparency  and  non-discrimination  arising  from  the  Treaty 
remain unclear. The resulting lack of legal certainty increases the risk that illegally 
awarded contracts will be canceled or terminated early and it ultimately discourages 
the  authorities  from  using  concessions  where  this  type  of  contract  could  be  a  good 
solution.  

Even if Member States were to pass legislation setting up a legal framework based 
on  the  Treaty  principles  the  legal  uncertainty  related  to  interpretations  of  those 
principles  by  national  lawmakers  and  the  large  disparities  between  the  laws  of 
different  Member  States  would  remain.  In  certain  cases  the  total  lack  of  national 
legislation  has  been  cited  as  a  cause  for  direct  awards  with  the  associated  risks  of 
malpractice or even corruption. 

The  optimal  solution  identified  was  legislation  based  on  the  current  provisions    on 
public  works  concessions,  adequately  adjusted  and  supplemented  with  certain 
specific provisions. A more restrictive approach, would be to extend to concessions 
the provisions that apply to public contracts. This approach was considered counter-
productive in that it could potentially discourage contracting  authorities from  using 
concessions. 

3. 

• 

LEGAL ELEMENTS OF THE PROPOSAL 

Legal basis 

The proposal is based on Articles 53(1), 62 and 114 of the Treaty on the Functioning 
of the European Union (TFEU). 

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• 

Subsidiarity principle   

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the EU. 

The objectives of the proposal cannot be sufficiently achieved by the Member States 
for the following reason: 

The coordination of procedures for public procurement above certain thresholds is an 
important  means  of  complementing  the  internal  market  in  the  field  of  public 
purchasing  by  ensuring  effective  and  equal  access  to  concessions  for  economic 
operators across  the  single  market. European-wide procurement procedures provide 
transparency and objectivity in public procurement, resulting in considerable savings 
and  improved  procurement  outcomes  that  benefit  Member  States’  authorities  and, 
ultimately, the European taxpayer. 

thereby 

regimes 

increasing 

This  objective  could  not  be  sufficiently  achieved  through  action  by  Member  States 
which  would  inevitably  result  in  divergent  requirements  and  possibly  conflicting 
procedural 
regulatory  complexity  and  causing 
unwarranted  obstacles  to  cross-border  activity.  Indeed,  until  now  many  Member 
States have not interpreted, clarified or implemented the relevant Treaty principles of 
transparency and equal treatment in a manner that ensures that concession contracts 
concessions contracts are awarded correctly. The ensuing lack of legal certainty and 
foreclosure  of  markets  is  unlikely  to  be  eliminated  without  intervention  at  the 
appropriate level.  

EU intervention is therefore necessary to overcome existing barriers to an EU-wide 
concession  market  and  to  ensure  convergence  and  a  level  playing  field,  ultimately 
guaranteeing the free movement of goods and services throughout 27 Member States. 

The proposal therefore complies with the subsidiarity principle. 

• 

Proportionality principle 

The proposal complies with the proportionality principle since it does not go beyond 
what is necessary in order to achieve the objective of ensuring the proper functioning 
of the internal market by laying down limited rules on the award of concessions.  

The  Impact  Assessment  allowed  a  range  of  solutions  to  be  identified.  These  were 
then  analysed  to  see  whether  they  would  adequately  meet  the  objectives  of  the 
legislation. This analysis showed that the objectives cannot be achieved by means of 
infringement policy or other non-legislative tools such as ‘soft law’. The most basic 
set of provisions, currently applicable to public works concessions, was also found to 
be inadequate because it does not provide sufficient legal certainty and compliance 
with the Treaty principles. On the other hand, more detailed legislation similar to the 
existing rules for the award of public contracts was considered to go beyond what is 
necessary to achieve the objectives.  

• 

Choice of instruments 

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Since  the  proposal  is  based  on  Articles  53(1),  62  and  114  TFEU  the  use  of  a 
Regulation applying both to the procurement of both goods and services would not 
be permitted by the Treaty. The instrument proposed is therefore a Directive. 

Non-legislative  options  were  discarded  for  reasons  set  out  in  detail  in  the  impact 
assessment. 

4. BUDGETARY IMPLICATION 

The proposal has no budgetary implications. 

5. ADDITIONAL INFORMATION 

• 

Review/revision/sunset clause 

The  proposal  contains  a  review  clause  concerning  the  economic  effects  on  the 
internal market resulting from the application of the thresholds laid down in Article 
5. 

• 

Detailed explanation of the proposal 

The  proposed  Directive  is  expected  to  guarantee  transparency,  fairness  and  legal 
certainty  in  the  award  of  concession  contracts,  and  thereby  contribute  to  improved 
investment  opportunities  and  ultimately  to  more  and  better  quality  of  works  and 
services.  It  will  apply  to  concessions  awarded  after  its  entry  into  force.  This 
provision  is  in  line  with  rulings  by  the  Court  of  Justice  of  the  European  Union  on 
modifying  contracts  (without  prejudice  to  the  temporary  arrangements  that  may 
prove  strictly  necessary  to  ensure  the  continuity  of  the  provision  of  the  service 
pending the award of a new concession). 

The  gains  referred  to  above  are  expected  to  be  obtained  thanks  to  a  number  of 
procedural requirements and clarifications applicable to concession awards, pursuing 
two  major  objectives:  increasing  legal  certainty  and  ensuring  a  better  access  to  the 
concessions markets for all European undertakings. 

Legal certainty 

The main objective of the Directive is to provide for clarity on the legal framework 
applicable to the award of concessions, but another is to clearly delimit the scope of 
application  of  this  framework.  The  specific  obligations  in  the  field  of  concessions 
will increase  legal certainty on one hand  by providing contracting authorities and 
contracting  entities with clear rules incorporating the Treaty principles governing the 
award of concessions and on the other hand by giving economic operators with some 
basic guarantees with regard to the award procedure.. 

Definition: The present proposal for a Directive on the award of concession contracts 
provides for a more precise definition of concession contracts with reference to the 
notion  of  operational  risk.  It  makes  clear  what  types  of  risk  are  to  be  considered 

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operational  and  how  to  define  significant  risk.  It  also  provides  references  as  to  the 
maximum duration of concessions. 

Incorporation  of  Treaty  obligations  into  secondary  law:  The  proposal  extends  the 
majority  of  the  obligations  which  currently  apply  to  the  award  of  public  works 
concessions to all services concessions. . It also lays down a number of concrete and 
more precise requirements, applicable at different stages of the award process on the 
basis of the Treaty principles, as interpreted in the case law of the Court of Justice of 
the  European  Union.  Moreover,  it  extends  the  application  of  secondary  law  to  the 
award of concession contracts in the utilities sector, which is currently exempt from 
such legislation.  

Public-public  cooperation:  There  is  considerable  legal  uncertainty  as  to  how  far 
cooperation  between  public  authorities  should  be  covered  by  public  procurement 
rules.  The  relevant  case-law  of  the  Court  of  Justice  of  the  European  Union  is 
interpreted  differently  between  Member  States  and  even  between  contracting 
authorities.  Hence  the  present  proposal  clarifies  the  cases  in  which  contracts 
concluded  between  contracting  authorities  are  not  subject  to  the  application  of 
concession award rules. Such clarification is guided by the principles set out in the 
relevant case law of the Court of Justice. 

Modifications:  The  modification  of  concessions  during  their  term  has  become  an 
increasingly relevant and problematic issue for practitioners. A specific provision on 
modifying concessions incorporates the basic solutions developed in the case law and 
provides a pragmatic solution for dealing with unforeseen circumstances requiring an 
a concession to be modified during its term.  

Better access to the concessions markets  

The proposal provides for a fundamental  improvement economic operators' access to 
the  concessions  markets.    The  provisions  are  primarily  designed  to  increase  the 
transparency  and  fairness  of  award  procedures  by  restricting  the  arbitrariness  of 
contracting authorities and contracting entities' decisions on such issues as prior and 
post-publication, procedural safeguard, selection and award criteria and the deadlines 
imposed  on  tenderers.  Furthermore,  they  provide  for  a  better  access  to  justice  in 
order to prevent or to address violations of those provisions.  

Publication  in  the  Official  Journal:  In  order  to  ensure  transparency  and  equal 
treatment  to  all  economic  operators,  the  present  proposal  provides  for  compulsory 
publication of concession contracts with a value equal to or gerater than EUR 5 000 
000.  This  threshold,  which  already  applies  to  works  concessions,  has  now  been 
extended  to  services  concessions  taking  into  account  the  public  consultations  and 
studies  carried  out  by  the  Commission  in  preparing  this  proposal.  It  is  aimed  at 
keeping any additional administrative burden and costs proportionate to the value of 
the  contract  and  at  focusing  on  contracts  with  a  clear  cross-border  interest.    The 
threshold applies to the value of such contracts calculated following a methodology 
spelled  out  in  the  contract.  In  the  case  of  services,  this  value  reflects  the  estimated 
overall value of all services to be provided by the concessionnaire during the whole 
term of the concession.  

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The new rules also define the minimum scope of information to be given to potential 
tenderers.  

Deadlines: This proposal also sets a minimum deadline for the submission of interest 
in  any  concession  award  procedure,  amounting  to  52  days,  as  this  is  currently  the 
case for public works concessions. It has been decided to provide for concessions a 
longer deadline than in case of public contracts, given that concession contracts are 
usually more complex. 

Selection and exclusion criteria: The proposal provides for obligations realting to the 
selection  criteria  to  be  applied  by  the  contracting  authorities  or  contracting  entities 
when  awarding  concessions.  These  rules  are  less  restrictive  than  similar  provisions 
currently applicable to public contracts. However, they restrict the selection criteria 
to  those  related  to  the  economic,  financial and technical  capacity of the bidder and 
limit the scope of the acceptable exclusion criteria. 

Award  criteria:  The  proposal  provides  for  an  obligation  to  apply  objective  criteria 
linked  to  the  subject  matter  of  the  concession,  ensuring  compliance  with  the 
principles of transparency, non-discrimination and equal treatment, guaranteeing that 
tenders  are  assessed  in  conditions  of  effective  competition  allowing    an  overall 
economic  advantage  for  the  contracting  authority  or  the  contracting  entity  to  be 
determined.  These  criteria  should  prevent  arbitrary  decisions  by  contracting 
authorities  and  contracting  entities  and  must  be  published  in  advance  and  listed  in 
descending    order  of  importance.  Member  States  or  contracting  authorities  or 
contracting  entities  which  so  wish,  may  also  provide  for  or  apply  the  ‘most 
economically advantageous tender’ criterion for the award of concessions. 

Procedural  guarantees:  Unlike  the  Public  Procurement  Directives,  the  proposed 
rules  do  not  contain  a  fixed  catalogue  of  award  procedures.  This  solution  allows 
contracting  authorities  and  contracting  entities  to  follow  more  flexible  procedures 
when  awarding  concessions  notably  reflecting  national  legal  traditions  and 
permitting the award process to be organised in the most efficient way. However, the 
proposal  establishes  a  number  of  clear  procedural  safeguards  to  be  applied  to  the 
award of concessions notably during negotiations. These safeguards aim at ensuring 
that the process is fair and transparent.. 

Remedies: This proposal provides for an extension of the scope of application of the 
Remedies  Directives  (Directives  89/665/EEC  and  92/13/EC,  as  amended  by 
Directive  2007/66/EC)  to  all  concession  contracts  above  the  threshold  in  order  to 
guarantee effective channels for challenging the award decision in court and provide 
minimal  judicial  standards  which  have  to  be  observed  by  contracting  authorities  or 
entities.  

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2011/0437 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the award of concession contracts 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 53 (1), Article 62 and Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee2,  

Having regard to the opinion of the Committee of the Regions3,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

The absence of clear rules at Union level governing the award of concession contracts 
gives  rise  to  legal  uncertainty  and  to  obstacles  to  the  free  provision  of  services  and 
causes  distortions  in  the  functioning  of  the  Internal  Market.  As  a  result,  economic 
operators, in particular Small and Medium Enterprises (SMEs), are being deprived of 
their  rights  within  the  Internal  Market  and  miss  out  on  important  business 
opportunities,  while  public  authorities  may  not  find  the  best  use  of  public  money  so 
that  EU  citizens  benefit  from  quality  services  at  best  prices.  An  adequate  legal 
framework  for 
the  award  of  concessions  would  ensure  effective  and  non-
discriminatory  access  to  the  market  to  all  Union  economic  operators  and  legal 
certainty, favouring public investments in infrastructures and strategic services to the 
citizen. 

(2) 

Public procurement plays a key role in the Europe 2020 strategy4 as one of the market-
based  instruments  to  be  used  to  achieve  a  smart,  sustainable  and  inclusive  growth 
while ensuring the most efficient use of public funds. The award of works concessions 

2 
3 
4 

OJ C , , p. . 
OJ C , , p. . 
COM(2010) 2020 final, 3.3-2010. 

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is presently subject to basic rules of 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 while 
the  award  of  services  concessions  with  a  cross-border  interest  is  subject  to  the 
principles  of  the  Treaty,  and  in  particular  the  principle  of  free    movement  of  goods, 
freedom of establishement and freedom to provide services as well as to the principles 
deriving  therefrom  such  as  equal  treatment,  non-discrimination,  mutual  recognition, 
proportionality  and  transparency.  There  is  a  risk  of  legal  uncertainty  related  to 
different  interpretations  of  the  principles  of  the  Treaty  by  national  legislators  and  of 
wide disparities among the legislations of different Member States. Such risk has been 
confirmed by the extensive case law of the Court of Justice of the European Union but 
which  has  only  partially  addressed  certain  aspects  of  the  award  of  concession 
contracts. Hence, a uniform concretisation of the Treaty principles across all Member 
States and the elimination of discrepancies in their understanding following therefrom 
is  necessary  at  the  Union  level  in  order  to  eliminate  persisting  distortions  of  the 
Internal Market.  

This Directive should not in any way affect the freedom of Member States or public 
authorities to decide on the direct provision of works or services to the public or on the 
outsourcing  of  such  provision  to  third  parties.  Member  States  or  public  authorities 
should remain free to define the characteristics of the service to be provided, including 
any conditions regarding the quality or price of the services, in order to pursue their 
public policy objectives 

For  concessions  above  a  certain  value,  it  is  appropriate  to  provide  for  a  minimum 
coordination  of  national  procedures  for  the  award  of  such  contracts  based  on  
principles  of  the  Treaty  so  as  to  guarantee  the  opening-up  of  concessions  to 
competition and adequate legal certainty. Those coordinating provisions should not go 
beyond what is necessary in order to achieve the aforementioned objectives. However, 
Member States should be allowed to  complete and develop further those provisions if 
they find it appropriate notably to better ensure compliance with the principles above.    

Certain coordination provisions should also be introduced for the award of works and 
services  concessions  awarded  in  the  water,  energy,  transport  and  postal  services 
sectors  given  that  national  authorities  may  influence  the  behaviour  of  entities 
operating in those sectors and taking into account the closed nature of the markets in 
which they operate, due to the existence of special or exclusive rights granted by the 
Member  States  concerning  the  supply  to,  provision  or  operation  of  networks  for 
providing the services concerned.  

 Concessions  are  contracts  for  pecuniary  interest  concluded  between  one  or  more 
economic operators and one or more contracting authorities or entities and having as 
their  object  the  acquisition  of  works  or  services  where  the  consideration  consists, 
normally,  in  the  right  to  exploit  the  works  or  services  that  are  the  subject  of  the 
contract.  The  execution  of  these  works  or  services  are  subject  to  specific  binding 
obligations  defined  by  the  contracting  authority  or  entity  which  are  legally 
enforceable. By contrast, certain State acts such as authorisations or licences whereby 
the  State  or  a  public  authority  establishes  the  conditions  for  the  exercise  of  an 
economic  activity,  should  not  qualify  as  concessions.  The  same  applies  to  certain 
agreements having as their object the right of an economic operator to exploit certain 
public  domains  or  resources,  such  as  land  lease  contracts  whereby  the  State  or 

(3) 

(4) 

(5) 

(6) 

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(7) 

contracting authority or entity establishes only general conditions for their use without 
acquiring specific works or services.  

Difficulties  related  to  the  interpretation  of  the  concepts  of  concession  and  public 
contract have been source of continued legal uncertainty among stakeholders and have 
given  rise  to  numerous  judgments  of  the  Court  of  Justice  of  the  European  Union  on 
this  subject.  Therefore,  the  definition  of  concession  should  be  clarified,  in  particular 
by  referring  to  the  concept  of  substantial  operating  risk.  The  main  feature  of  a 
concession, the right to exploit the works or services, always implies the transfer to the 
concessionaire of an economic risk involving the possibility that it will not recoup the 
investments made and the costs incurred in operating the works or services awarded. 
The  application  of  specific  rules  governing  the  award  of  concessions  would  not  be 
justified  if  the  contracting  authority  or  entity  relieved  the  contractor  of  any  potential 
loss,  by  guaranteeing  a  minimal  revenue,  equal  or  higher  to  the  costs  that  the 
contractor  has  to  incur  in  relation  with  the  performance  of  the  contract.  At  the  same 
time  it  should  be  made  clear  that  certain  arrangements  which  are  fully  paid  by  a 
contracting  authority  or  a  contracting  entity  should  qualify  as  concessions  where  the 
recoupement of the investements and costs incurred by the operator for execution the 
work or provididng the service depends on the actual demand for or the availability of 
the service or asset. 

(8)  Where  sector  specific  regulation  provides  for  a  guarantee  to  the  concessionaire  on 
breaking  even  on  investments  and  costs  incurred  for  operating  the  contract,  such 
contract should not qualify as a concession within the meaning of this Directive.  

(9) 

The notion of special or exclusive rights is central to the definition of the scope of this 
Directive, since entities which are neither contracting entities pursuant to Article 4 (1) 
(1)  nor  public  undertakings  are  subject  to  its  provisions  only  to  the  extent  that  they 
exercise  one  of  the  activities  covered  on  the  basis  of  such  rights.  It  is  therefore 
appropriate  to  clarify  that  rights  which  have  been  granted  by  means  of  a  procedure 
based  on  objective  criteria,  notably  pursuant  to  Union  legislation,  and  for  which 
adequate  publicity  has  been  ensured  do  not  constitute  special  or  exclusive  rights  for 
the  purposes  of  this  Directive.  This  legislation  should  include  Directive  98/30/EC  of 
the  European  Parliament  and  of  the  Council  of  22  June  1998  concerning  common 
rules  for  the  internal  market  in  natural  gas5,  Directive  96/92/EC  of  the  European 
Parliament and of the Council of 19 December 1996 concerning common rules for the 
internal market in electricity6, Directive 97/67/EC of the European Parliament and of 
the  Council  of  15  December  1997  on  common  rules  for  the  development  of  the 
internal  market  of  Community  postal  services  and  the  improvement  of  quality  of 
service7, Directive 94/22/EC of the European Parliament and of the Council of 20 May 
1994  on  the  conditions  for  granting  and  using  authorisations  for  the  prospection, 
exploration and production of hydrocarbons8 and Regulation (EC) No 1370/2007of the 
European  Parliament  and  of  the  Council  of  23 October  2007  on  public  passenger 
transport  services  by  rail  and  by  road  and  repealing  Council  Regulations  (EEC) 
Nos 1191/69  and 1107/709.  The  increasingly  diverse  forms  of  public  action  made  it 

5 
6 
7 
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9 

OJ L 204, 21.7.1998, p. 1 
OJ L 27, 30.1.1997, p. 20. 
OJ L 15, 21.1.1998, p. 14. 
OJ L 164, 30.6.1994, p. 3. 
OJ L 315, 3.12.2007, p. 1. 

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necessary to define more clearly the notion of procurement itself. The Union rules on 
concessions refer to the acquisition of works or services for a consideration consisting 
in  exploitation  of  those  works  or  services.  The  notion  of  acquisition  should  be 
understood broadly in the sense of obtaining the benefits of the works or services in 
question not requiring in all cases a transfer of ownership to contracting authorities or 
contracting  entities.  Furthermore,  the  mere  financing  of  an  activity,  which  is 
frequently linked to the obligation to reimburse the amounts received where they are 
not used for the purposes intended, does not usually fall under this Directive.  

(10) 

It  has  also  proven  necessary  to  clarify  what  should  be  understood  as  a  single 
procurement, with the effect that the aggregate value of all concessions concluded for 
the  purpose  of  this  procurement  has  to  be  taken  into  account  with  regard  to  the 
thresholds of this Directive, and that the procurement should be advertised as a whole, 
possibly split into  lots. The  concept of single  procurement  encompasses  all supplies, 
works  and  services  needed  to  carry  out  a  particular  project.  Indications  for  the 
existence  of  one  single  project  can  for  instance  consist  in  overall  prior  planning  and 
conception by the contracting authority, the fact that the different elements purchased 
fulfil  a  single  economic  and  technical  function  or  that  they  are  otherwise  logically 
interlinked. 

(11)  To  ensure  a  real  opening  up  of  the  market  and  a  fair  balance  in  the  application  of 
concession award rules in the water, energy, transport and postal services sectors it is 
necessary  for  the  entities  covered  to  be  identified  on  a  basis  other  than  their  legal 
status. It should be ensured, therefore, that the equal treatment of contracting entities 
operating  in  the  public  sector  and  those  operating  in  the  private  sector  is  not 
prejudiced.  It  is  also  necessary  to  ensure,  in  keeping  with  Article  345  of  the  Treaty, 
that  the  rules  governing  the  system  of  property  ownership  in  Member  States  are  not 
prejudiced. 

(12)  Concessions  may  be  awarded  by  contracting  entities  for  the  purpose  of  meeting  the 
requirements of several activities, possibly subject to different legal regimes. It should 
be  clarified  that  the  legal  regime  applicable  to  a  single  concession  intended  to  cover 
several activities should be subject to the rules applicable to the activity for which it is 
principally  intended.  Determination  of  the  activity  for  which  the  concession  is 
principally  intended  may  be  based  on  an  analysis  of  the  requirements  which  the 
specific concession must meet, carried out by the contracting entity for the purposes of 
estimating the concession value and drawing up the concession award documents. In 
certain  cases,  it  might  be  objectively  impossible  to  determine  for  which  activity  the 
concession  is  principally  intended.  The  rules  applicable  to  such  cases  should  be 
indicated.  

(13) 

It  is  appropriate  to  exclude  from  the  scope  of  this  Directive  certain  services 
concessions awarded to an economic operator which is itself a contracting authority or 
a contracting entity on the basis of an exclusive right which that operator enjoys under 
published national law or administrative act and which has been granted in accordance 
with  the  Treaty  and  Union  sectoral  legislation  concerning  the  management  of 
networks  infrastructure  related  to  the  activities  set  out  in  annex  III,  since  such 
exclusive right makes it impossible to follow a competitive procedure for the award. 
By way of derogation and without prejudice to the legal consequences of the general 
exclusion  from  the  scope  of  this  Directive,  concessions  as  defined  in  article  8  (1) 
should  be  subject  to  the  obligation  to  publish  a  concession  award  notice  in  view  of 

EN 

11 

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(14) 

ensuring  basic  transparency  unless  the  conditions  of  such  transparency  are  provided 
for  in sectoral legislation. 

It  is  appropriate  to  exclude  certain  service  and  works  concessions  awarded  to  an 
undertakings  affiliated  to  contracting  entities,  having  as  its  principal  activity  the 
provision  of  such  services  or  works  to  the  group  of  which  it  is  part,  rather  than 
offering them on the market. It is also appropriate to exclude certain service and works 
concessions  awarded  by  a  contracting  entity  to  a  joint  venture  which  is  formed  by  a 
number of contracting entities for the purpose of carrying out activities covered by this 
Directive and of which that entity is part. However, it is appropriate to ensure that this 
exclusion  does  not  give  rise  to  distortions  of  competition  to  the  benefit  of  the 
undertakings  or  joint  ventures  that  are  affiliated  with  the  contracting  entities;  it  is 
appropriate  to  provide  a  suitable  set  of  rules,  in  particular  as  regards  the  maximum 
limits  within  which  the  undertakings  may  obtain  a  part  of  their  turnover  from  the 
market and above which they would lose the possibility of being awarded concessions 
without  calls  for  competition,  the  composition  of  joint  ventures  and  the  stability  of 
links  between  those  joint  ventures  and  the  contracting  entities  of  which  they  are 
composed. 

(15)  This  Directive  should  not  apply  to  concessions  awarded  by  contracting  entities  and 
intended  to  permit  the  performance  of  an  activity  referred  to  in  Annex  III  if,  in  the 
Member State in which this activity is carried out, it is directly exposed to competition 
on  markets  to  which  access  is  not  limited,  as  established  following  a  procedure 
provided  for  to  this  purpose  in  accordance  with  Art.  27  and  28  of  Directive  [current 
2004/17/EC]. This procedure should provide legal certainty for the entities concerned, 
as well as an appropriate decision-making process, ensuring, within short time limits, 
uniform application of Union law in this area. 

(16)  This  Directive  does  not  apply  to  the  concession  award  carried  out  by  international 
organisations on their own behalf and for their own account. There is, however, a need 
to clarify to which extent it is appropriate to apply this Directive to concession award 
governed by specific international rules.  

(17)  There  is  considerable  legal  uncertainty  as  to  how  far  cooperation  between  public 
authorities should be covered by concession award rules. The relevant case-law of the 
Court  of  Justice  of  the  European  Union  is  interpreted  differently  between  Member 
States  and  even  between  contracting  authorities  or  certain  contracting  entities.  It  is 
therefore  necessary  to  clarify  in  what  cases  concessions  concluded  between  such 
authorities  are  not  subject  to  the  application  of  public  concession  award  rules.  Such 
clarification should be guided by the principles set out in the relevant case-law of the 
Court  of  Justice.  The  sole  fact  that  both  parties  to  an  agreement  are  themselves 
contracting authorities or contracting entities under Art. 4 (1) (1) does not as such rule 
out the application of concession award rules. However, the application of concession 
award rules should not interfere with the freedom of public authorities to decide how 
to organise the way they carry out their public service tasks. Concessions awarded to 
controlled entities or cooperation for the joint execution of the public service tasks of 
the participating contracting authorities or entities should therefore be exempted from 
the application of the rules if the conditions set out in this Directive are fulfilled. This 
Directive should aim to ensure that any exempted public-public cooperation does not 
cause  a  distortion  of  competition  in  relation  to  private  economic  operators.  Neither 

EN 

12 

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(18) 

(19) 

should the participation of a contracting authority as a tenderer in a procedure for the 
award of a public contract cause any distortion of competition. 

In order to ensure adequate advertisement of works and services concessions above a 
certain  value  awarded  by  contracting  entities  and  by  the  contracting  authorities,  the 
award  of  such  contracts  should  be  preceded  by  the  compulsory  publication  of  a 
concession  notice  in  the  Official  Journal  of  the  European  Union.  The  thresholds 
should  reflect  the  clear  cross-border  interest  of  concessions  to  economic  operators 
located  in  other  Member  States.  To  calculate  the  value  of  a  services  concession, 
account  must  be  taken  of  the  estimated  value  of  all  services  to  be  provided  by  the 
concessionaire from the point of view of a potential tenderer. 

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

(20)  A review of so-called prioritary and non-prioritary services (‘A’ and ‘B’ services) by 
the  Commission  has  shown  that  it  is  not  justified  to  restrict  the  full  application  of 
procurement law to a limited group of services. As a result, this Directive should apply 
to a number of services (such as catering and water distribution services), which both 
showed a potential for cross-border trade.  

(21) 

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

EN 

13 

   EN 

 
(22)  Given  the  importance  of  the  cultural  context  and  the  sensitivity  of  these  services, 
Member States should be given wide discretion to organise the choice of the service 
providers in the way they consider most appropriate. The rules of this Directive do not 
prevent  Member  States  to  apply  specific  quality  criteria  for  the  choice  of  service 
providers, such as the criteria set out in the voluntary European Quality Framework for 
Social Services of the European Union's Social Protection Committee . Member States 
and/or  public  authorities  remain  free  to  provide  these  services  themselves  or  to 
organise social services in a way that does not entail the conclusion of concessions, for 
example  through  the  mere  financing  of  such  services  or  by  granting  licences  or 
authorisations to all economic operators meeting the conditions established beforehand 
by  the  contracting  authority  or  contracting  entity,  without  any  limits  or  quotas, 
provided such system ensures sufficient advertising and complies with the principles 
of transparency and non-discrimination. 

(23) 

In  order  to  make  it  possible  for  all  interested  operators  to  submit  applications  and 
tenders, contracting authorities and contracting entities should be obliged to respect a 
minimum time limit for the receipt of such applications. 

(24)  The  choice  and  application  of  proportional,  non-discriminatory  and  fair  selection 
criteria  to  economic  operators  is  crucial  for  their  effective  access  to  the  economic 
opportunities  related  to  concessions.  In  particular,  the  possibility  for  a  candidate  to 
rely  on  the  capacities  of  other  entities  can  be  decisive  to  enable  the  participation  of 
small  and  medium  sized  enterprises.  Therefore,  it  is  appropriate  to  provide  that  the 
selection  criteria  should  relate  exclusively  to  the  technical,  financial  and  economic 
capacity  of  operators,  should  be  announced  in  the  concession  notice  and  cannot 
preclude  an  economic  operator  from  relying  on  the  capacities  of  other  entities, 
regardless of the legal nature of its links with those entities, if the latter proves to the 
contracting authority or entity that it will have at its disposal the necessary resources.  

(25) 

In  order  to  ensure  transparency  and  equal  treatment,  criteria  for  the  award  of 
concessions  should  always  comply  with  some  general  standards.  These  should  be 
disclosed in advance to all potential tenderers, be related to the subject matter of the 
contract  and  should  not  offer  to  the  contracting  authority  or  contracting  entity  an 
unrestricted  freedom  of  choice.  They  should  ensure  the  possibility  of  effective 
competition and be accompanied by requirements that allow the information provided 
by  the  tenderers  to  be  effectively  verified.  In  order  to  comply  with  these  standards 
while  improving  legal  certainty,  Member  States  may  provide  for  the  use  of  the 
criterion of the most economically advantageous tender.  

(26)  Where contracting authorities and contracting entities choose to award a concession to 
the most economically advantageous tender, they should determine the economic and 
quality criteria on the basis of which they assess the tenders in order to identify which 
one offers the best value for money. The determination of thosese criteria depends on 
the object of the concession since they should allow the level of performance offered 
by each tender to be assessed in  the light of the subject-matter of the concession, as 
defined  in  the  technical  specifications  and  the  value  for  money  of  each  tender  to  be 
measured. 

(27)  Concessions  are  usually  long  term,  complex  arrangements  where  the  contractor 
assumes responsibilities and risks traditionally born by the contracting authorities and 
normally falling within their remit and contracting entities. For this reason, contracting 

EN 

14 

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authorities  or  entities  should  maintain  a  margin  of  flexibility  in  organising  the 
awarding process, involving also a possibility to negotiate the content of the contract 
with  the  candidates.  However,  in  order  to  ensure  equal  treatment  and  transparency 
throughout  the  awarding  procedure,  it  is  appropriate  to  provide  for  certain 
requirements  as  to  the  structure  of  the  awarding  process,  including  negotiations,  the 
dissemination  of  information  and  the  availability  of  written  records.  It  is  also 
necessary  to  provide  that  the  initial  terms  of  the  concession  notice  should  not  be 
deviated from, in order to prevent unfair treatment of any potential candidates.  

(28)  The  technical  specifications  drawn  up  by  contracting  authorities  and  contracting 
entities need to allow concession award to be opened up to competition. To that end, it 
must be possible to submit tenders that reflect the diversity of technical solutions so as 
to  obtain  a  sufficient  level  of  competition.  Consequently,  technical  specifications 
should  be  drafted  in  such  a  way  to  avoid  artificially  narrowing  down  competition 
through  requirements  that  favour  a  specific  economic  operator  by  mirroring  key 
characteristics of the supplies, services or works habitually offered by that economic 
operator.  Drawing  up  the  technical  specifications  in  terms  of  functional  and 
performance  requirements  generally  allows  this  objective  to  be  achieved  in  the  best 
way possible and favours innovation. Where reference is made to a European standard 
or,  in  the  absence  thereof,  to  a  national  standard,  tenders  based  on  equivalent 
arrangements  should  be  considered  by  contracting  authorities  or  contracting  entities. 
To demonstrate equivalence, tenderers can be required to provide third-party verified 
evidence; however, other appropriate means of proof such as a technical dossier of the 
manufacturer should also be allowed where the economic operator concerned has no 
access to such certificates or test reports, or no possibility of obtaining them within the 
relevant time limits.  

(29) 

in 

In technical specifications and in award criteria, contracting authorities and contracting 
entities should be allowed to refer to a specific production process, a specific mode of 
provision  of  services,  or  a  specific  process  for  any  other  stage  of  the  life  cycle  of  a 
product  or  service,  provided  that  they  are  linked  to  the  subject-matter  of  the 
concession.  In  order  to  better  integrate  social  considerations  inthe  award  of 
concessions,  procurers  may  also  be  allowed  to  include,  in  the  award  criteria, 
characteristics  related  to  the  working  conditions.  However,  where  the  contracting 
authorities  or  contracting  entities  use  the    most  economically  advantageous  tender, 
such  criteria  may  only  relate  to  the  working  conditions  of  the  persons  directly 
participating 
in  question.  Those 
characteristics  may  only  concern  the  protection  of  health  of  the  staff  involved  in  the 
production process or the favouring of social integration of disadvantaged persons or 
members  of  vulnerable  groups  amongst  the  persons  assigned  to  performing  the 
contract,  including  accessibility  for  persons  with  disabilities.  In  this  case,  any  award 
criteria  which  include  those  characteristics  should  in  any  event  remain  limited  to 
characteristics  that  have  immediate  consequences  on  staff  members  in  their  working 
environment.  They  should  be  applied  in  accordance  with  Directive  96/71/EC  of  the 
European Parliament and of the Council of 16 December 1996 concerning the posting 
of workers in the framework of the provision of services10 and in a way that does not 
discriminate  directly  or  indirectly  against  economic  operators  from  other  Member 
States or from third countries parties to the Agreement or to Free Trade Agreements to 

the  process  of  production  or  provision 

10 

OJ L 18, 21.1.1997, p.1. 

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15 

   EN 

 
                                                 
which the Union is party. Contracting authorities and contracting entities should, also 
where  they  use  the  criterion  of  the    most  economically  advantageous  tender,  be 
allowed to use as an award criterion the organisation, qualification and experience of 
the  staff  assigned  to  performing  the  concession  in  question,  as  this  may  affect  the 
quality of concession performance and, as a result, the economic value of the tender. 

(30)  Electronic  means  of  information  and  communication  can  greatly  simplify  the 
publication  of  contracts  and  increase  the  efficiency  and  transparency  of  concession 
award  processes.  They  should  become  the  standard  means  of  communication  and 
information  exchange  in  concession  award  procedures.  The  use  of  electronic  means 
also  leads  to  time  savings.  As  a  result,  provision  should  be  made  for  reducing  the 
minimum periods where electronic means are used, subject, however, to the condition 
that  they  are  compatible  with  the  specific  mode  of  transmission  envisaged  at  Union 
level.  Moreover,  electronic  means  of  information  and  communication  including 
adequate  functionalities  can  enable  contracting  authorities  and  contracting  entities  to 
prevent, detect and correct errors that occur during procurement procedures. 

(31)  Contracting authorities and contracting entities from different Member States may be 
interested  in  cooperating  and  in  awarding  jointly  public  concessions  in  order  to  take 
the best benefit of internal market potential in terms of economies of scale and risk-
benefit sharing, notably for innovative projects involving a greater amount of risk than 
reasonably  supportable  by  a  single  contracting  authority  or  contracting  entity. 
Therefore new rules on cross-border joint concession award designating the applicable 
law  should  be  established  in  order  to  facilitate  setting  up  cross-border  joint  public 
concession  award.  In  addition,  contracting  authorities  and  contracting  entities  from 
different  Member  States  may  set  up  joint  legal  bodies  established  under  national  or 
Union  law.  Specific  rules  should  be  established  for  such  form  of  joint  concession 
award. 

(32)  The laws, regulations and collective agreements, at both national and European Union 
level,  which  are  in  force  in  the  areas  of  employment  conditions  and  safety  at  work 
should apply during performance of a concession, providing that such rules, and their 
application,  comply  with  Union  law.  In  cross-border  situations,  where  workers  from 
one  Member  State  provide  services  in  another  Member  State  for  the  purpose  of 
performing  a  concession,  Directive  96/71/EC  of  the  European  Parliament  and  of  the 
Council of 16 December 1996 concerning the posting of workers in the framework of 
the provision of services11 lays down the minimum conditions which must be observed 
by the host country in respect of such posted workers. 

(33)  Concessions should not be awarded to economic operators that have participated in a 
criminal organisation or have been found guilty of corruption, fraud to the detriment of 
the  Union’s  financial  interests  or  money  laundering.  Non-payment  of  taxes  or  social 
security contributions should also be sanctioned by mandatory exclusion at the level of 
the  Union.  Furthermore,  contracting  authorities  and  contracting  entities  should  be 
given the possibility to exclude candidates or tenderers for serious violations of Union 
or national law aimed at the protection of public interests compatible with the Treaty 
or where the economic operator has shown significant or persistent deficiencies in the 

11 

OJ L 18, 21.1.1997, p. 1. 

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16 

   EN 

 
                                                 
performance  of  a  prior  concession  or  concessions  of  a  similar  nature  with  the  same 
contracting authority or contracting entity. 

(34) 

It  is  necessary  to  clarify  the  conditions  under  which  modifications  of  a  concession 
during its execution require a new award procedure, taking into account the relevant 
case-law  of  the  Court  of  Justice  of  the  European  Union.  A  new  award  procedure  is 
required  in  case  of  material  changes  to  the  initial  concession,  demonstrating  the 
intention of the parties to renegotiate essential terms or conditions of that concession. 
This is notably the case if the amended conditions would have had an influence on the 
outcome of the procedure, had they been part of the initial procedure. An exceptional 
and temporary extension of the term of the  concession strictly aimed at ensuring the 
continuity  of  the  provision  of  the  service  pending  the  award  of  a  new  concession 
should not normally qualify as a material change to the initial concession. 

(35)  Contracting  authorities  and  contracting  entities  can  be  faced  with  external 
circumstances that they could not foresee when they awarded the concession. In this 
case,  a  certain  degree  of  flexibility  is  needed  to  adapt  the  concession  to  these 
circumstances  without  a  new  award  procedure.  The  notion  of  circumstances  that  a 
diligent  contracting  authority  or  contracting  entity  could  not  foresee  refers  to  those 
circumstances which could not be predicted despite reasonably diligent preparation of 
the initial award by the contracting authority or contracting entity, taking into account 
its available means, the nature and characteristics of the specific project, good practice 
in the field in question and the need to ensure an appropriate relationship between the 
resources spent in preparing the award and its foreseeable value. However, this cannot 
apply in cases where a modification results in an alteration of the nature of the overall 
procurement, for instance by replacing the works, supplies or services to be procured 
by something different or by fundamentally changing the type of procurement since, in 
such a situation, a hypothetical influence on the outcome may be assumed. 

(36) 

In line with the principles of equal treatment and transparency, the successful tenderer 
should  not  be  replaced  by  another  economic  operator  without  reopening  the 
concession  to  competition.  However,  the  successful  tenderer  performing  the 
concession  may  undergo  certain  structural  changes  during  the  performance  of  the 
concession,  such  as  purely  internal  reorganisations,  mergers  and  acquisitions  or 
insolvency or be substituted on the basis of a contractual clause known to all tenderers 
and  in  line  with  the  principles  of  equal  treatment  and  transparency.  Such  structural 
changes  should  not  automatically  require  new  award  procedures  for  all  concessions 
performed by that undertaking. 

(37)  Contracting  authorities  or  contracting  entities  should  have  the  possibility  to  provide 
for modifications to a concession in the concession contract itself, by way of review 
clauses  which  should  not  give  them  unlimited  discretion.  This  Directive  should 
therefore  set  out  to  what  extent  modifications  may  be  provided  for  in  the  initial 
concession. 

(38) 

In  order  to  adapt  to  rapid  technical  and  economic  developments,  the  power  to  adopt 
acts  in  accordance  with  Article  290  of  the  Treaty  should  be  delegated  to  the 
Commission in respect of a number of non-essential elements of this Directive. In fact, 
the technical details and characteristics of the devices for electronic receipt should be 
kept  up  to  date  with  technological  developments  and  administrative  needs;  it  is  also 
necessary  to  empower  the  Commission  to  make  mandatory  technical  standards  for 

EN 

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electronic communication to ensure the interoperability of technical formats, processes 
and  messaging  in  concession  award  procedures  conducted  using  electronic  means  of 
communication  taking  into  account  technological  developments  and  administrative 
needs.  Furthermore,  the  list  of  legislative  acts  of  the  Union  establishing  common 
methodologies  for  the  calculation  of  life-cycle  costs  should  be  quickly  adapted  to 
incorporate the measures adopted on a sectoral basis. In order to satisfy these needs, 
the  Commission  should  be  empowered  to  keep  the  list  of  legislative  acts  including 
LCC methodologies up-to date. 

(39) 

In  order  to  ensure  adequate  judicial  protection  of  candidates  and  tenderers  in  the 
concession award procedures, as well as to make effective the enforcement of the rules 
of  this  Directive  and  of  the  Treaty  principles,  Council  Directive  89/665/EEC  on  the 
coordination  of  the  laws,  regulations  and  administrative  provisions  relating  to  the 
application  of  review  procedures  to  the  award  of  public  supply  and  public  works 
contracts12  and  Council  Directive  92/13/EEC  coordinating  the  laws,  regulations  and 
administrative  provisions  relating  to  the  application  of  Community  rules  on  the 
procurement  procedures  of  entities  operating  in  the  water,  energy,  transport  and 
telecommunications sectors13 should also apply to services concessions and to works 
concessions  awarded  by  both  contracting  authorities  and  contracting  entities. 
Directives 89/665/EEC and 92/13/EEC should, therefore, be amended accordingly. 

(40)  The  processing  of  personal  data  pursuant  to  this  Directive  should  be  governed  by 
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 
on the protection of individuals with regard to the processing of personal data and on 
the free movement of such data14.  

(41)  The  law  of  the  Union  on  public  procurment  requires  Member  States  to  consistently 
and systematically monitor the implementation and functioning of those rules in order 
to ensure the efficient and uniform application of Union law. Hence, where Member 
States  designate  a  single  national  authority  in  charge  of  monitoring,  implementation 
and  control  of  public  procurement,  that  authority  may  have  the  same  responsibilities 
regarding  concessions.  A  single  body  with  overarching  tasks  should  ensure  an 
overview  of  main  difficulties  in  implementation  and  suggest  appropriate remedies to 
more  structural  problems.  That  body  may  also  provide  immediate  feedback  on  the 
functioning  of  policy  and  potential  weaknesses  in  national  legislation  and  practice, 
thus  contributing  to  the  quick  identification  of  solutions  and  the  improvement  of 
concession award procedures. 

(42) 

It is of particular importance that the Commission carry out appropriate consultations 
during  its  preparatory  work,  including  at  expert  level.  The  Commission,  when 
preparing  and  drawing-up  delegated  acts,  should  ensure  a  simultaneous,  timely  and 
appropriate  transmission  of  relevant  documents  to  the  European  Parliament  and 
Council. 

(43) 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Directive;  the 
procedure for drawing up and transmission of notices and for sending and publishing 

12 
13 
14 

OJ L 395, 30.12.1989, p. 33. 
OJ L 76, 23.3.1992, p. 14. 
OJ L 281, 23.11.1995, p. 31. 

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18 

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data referred to in Annexes IV to VI, the amendment of the thresholds implementing 
powers should be conferred on the Commission. Those powers should be exercised in 
accordance  with  Regulation  (EU)  182/2011  of  the  European  Parliament  and  of  the 
Council of 16 February 2011 laying down the rules and general principles concerning 
mechanisms  for  control  by  the  Member  States  of  the  Commission's  exercise  of 
implementing  powers15.  The  advisory  procedure  should  be  used  for  the  adoption  of 
implementing  acts,  which  do  not  have  any  impact  either  from  the  financial  point  of 
views or on the nature and scope of obligations stemming from this Directive. On the 
contrary,  these  acts  characterised  by  a  mere  administrative  purpose  and  serve  to 
facilitate the application of the rules set by this Directive. 

(44) 

In  accordance  with  the  Joint  Political  Declaration  of  Member  States  and  the 
Commission on explanatory documents of [date], Member States have undertaken to 
accompany, in justified cases, the notification of their transposition measures with one 
or more documents explaining the relationship between the components of a Directive 
and the corresponding parts of national transposition instruments. With regard to this 
Directive, the legislator considers the transmission of such documents to be justified, 

HAVE ADOPTED THIS DIRECTIVE:  

15 

OJ L 55, 28.2.2011, p. 13. 

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Directive on concessions 

Table of contents  

TITLE I: DEFINITIONS, GENERAL PRINCIPLES AND SCOPE 

CHAPTER I: Definitions, general principles and scope 

SECTION 1: DEFINITIONS AND SCOPE  

Article 1: Subject-matter and scope 

Article 2: Definitions 

Article 3: Contracting authorities 

Article 4: Contracting entities 

Article 5: Thresholds 

Article 6: Methods for calculating the estimated value of concessions 

Article 7: General Principles  

SECTION II: EXCLUSIONS 

Article  8:  Exclusions  applicable  to  concessions  awarded  by  contracting 
authorities and contracting entities 

Article 9: Specific exclusions in the field of telecommunications  

Article  10:  Exclusions  applicable  to  concessions  awarded  by  contracting 
entities  

Article 11: Concessions awarded to an affiliated undertaking 

Article  12:  Concessions  awarded  to  a  joint  venture  or  to  a  contracting  entity 
forming part of a joint venture 

Article 13: Notification of information  

Article 14: Exclusion of activities which are directly exposed to competition 

Article 15: Relations between public authorities 

SECTION III: GENERAL PROVISIONS 

Article 16: Duration of the concession 

Article 17: Social and other specific services  

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Article 18: Mixed  concessions 

Article 19: Concessions covering several activities 

SECTION IV: SPECIFIC SITUATIONS 

Article 20: Reserved concessions 

Article 21: Research and development services 

CHAPTER II: Principles 

Article 22: Economic operators 

Article 23: Nomenclatures 

Article 24: Confidentiality 

Article 25: Rules applicable to communication 

TITLE II: RULES ON CONCESSIONS 

CHAPTER I: Publication and Transparency 

Article 26: Concession notices 

Article 27: Concession award notices 

Article 28: Form and manner of publication of notices 

Article 29: Publication at national level  

Article 30: Electronic availability of concession documents  

CHAPTER II: Conduct of the procedure 

SECTION  1:  JOINT  CONCESSIONS,  TIME  LIMITS  AND  TECHNICAL 
SPECIFICATIONS 

Article  31:  Joint  concessions  t  between  contracting  authorities  or  contracting 
entities from different Member States 

Article 32: Technical specifications 

Article 33: Test reports, certification and other means of proof 

SECTION II: CHOICE OF PARTICIPANTS AND AWARD OF CONCESSIONS  

Article 34: General principles 

Article 35: Procedural guarantees 

Article 36: Selection of and qualitative assessment of candidates  

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Article 37: Setting time limits  

Article 38: Time limits for submission of applications for the concession  

Article 39: Concession award criteria 

Article 40: Life cycle and life-cycle costing 

TITLE III: RULES ON PERFORMANCE OF CONCESSIONS 

Article 41: Subcontracting 

Article 42: Modification of concessions during their term 

Article 43: Termination of concessions 

TITLE IV: MODIFICATIONS OF DIRECTIVES ON REMEDIES IN THE FIELD OF 

PUBLIC PROCUREMENT 

Article 44: Amendments to Directive 89/665/EEC 

Article 45: Amendments to Directive 92/13/EEC 

TITLE  V:  DELEGATED  POWERS,  IMPLEMENTING  POWERS  AND  FINAL 

PROVISIONS 

Article 46: Exercise of the delegation of powers 

Article 47: Urgency procedure 

Article 48: Committee Procedure 

Article 49: Transposition 

Article 50: Transitional provisions   

Article 51: Review 

Article 52: Entry into force 

Article 53: Addressees 

ANNEXES 

ANNEX I: LIST OF THE ACTIVITIES REFERRED TO IN ARTICLE 2(5) 

ANNEX II: LIST OF UNION LEGISLATION REFERRED TO IN ARTICLE 40 (4) 

ANNEX III: ACTIVITIES EXERCISED BY CONTRACTING ENTITIES AS REFERRED 
TO IN ART. 4 

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ANNEX IV: INFORMATION TO BE INCLUDED IN CONCESSION NOTICES  

ANNEX V: INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES  

ANNEX VI: INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES 
CONCERNING  CONCESSIONS  FOR  SOCIAL  AND  OTHER  SPECIFIC  SERVICES 
(ARTICLE 27(1)) 

ANNEX  VII:  INFORMATION  TO  BE  INCLUDED  IN  NOTICES  OF  MODIFICATIONS 
OF A CONCESSION DURING ITS TERM ACCORDING TO ARTICLE 42 

ANNEX VIII: DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS 

ANNEX IX: FEATURES CONCERNING PUBLICATION 

ANNEX X: SERVICES REFERRED TO IN ARTICLE 7 

ANNEX XI: LIST OF EUROPEAN UNION LEGISLATION REFERRED TO IN ARTICLE 
4(2)  

ANNEX  XII:  REQUIREMENTS  RELATING  TO  DEVICES  FOR  THE  ELECTRONIC 
RECEIPT OF TENDERS, AND APPLICATIONS  

ANNEX XIII: INFORMATION TO BE INCLUDED IN PRIOR INFORMATION NOTICES 
CONCERNING  CONCESSIONS  FOR  SOCIAL  AND  OTHER  SPECIFIC  SERVICES 

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TITLE I 
DEFINITIONS, GENERAL PRINCIPLES AND SCOPE 

CHAPTER I 
Definitions, general principles and scope 

SECTION I 
DEFINITIONS AND SCOPE  

Article 1 
Subject-matter and scope 

1. 

2. 

1. 

(1) 

(2) 

(3) 

This  Directive  establishes  rules  on  the  procedures  for  procurement  by  contracting 
authorities  and  by  contracting  entities  with  respect  to  concessions  whose  value  is 
estimated to be not less than the thresholds laid down in Article 5. 

This  Directive  applies  to  the  acquisition  of  works  or  services,  including  supplies 
which are incidental to the subject matter of a concession, from economic operators 
chosen by either of the following: 

a) 

Contracting authorities whether or not the works or services including the 
related supplies, are intended for a public purpose; 

b)  Contracting  entities  provided  that  the  works  or  services  including  the 
related  supplies,  are  intended  for  the  pursuit  of  one  of  the  activities 
referred to in Annex III. 

Article 2 
Definitions 

For the purposes of this Directive the following definitions shall apply:  

'concessions'  means  public  works  concessions,  works  concessions  or  services 
concessions.  

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

‘written’ or ‘in writing’ means any expression consisting of words or figures which 
can be read, reproduced and subsequently communicated. It may include information 
which is transmitted and stored by electronic means. 

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24 

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(4) 

(5) 

(6) 

(7) 

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

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

‘work’ means the outcome of building or civil engineering works taken as a whole 
which is sufficient in itself to fulfil an economic or technical function. 

'services  concession'  means  a  contract  for  pecuniary  interest  concluded  in  writing 
between one or more economic operators and one or more contracting authorities or 
contracting  entities  and  having  as  their  object  the  provision  of  services  other  than 
those  referred  to  in  points  2  and  4  where  the  consideration  for  the  services  to  be 
provided consists either solely in the right to exploit the services that are subject of 
the contract or in that right together with payment. 

(8) 

'candidate’  means  an  economic  operator  that  has  sought  an  invitation  or  has  been 
invited to take part in a concession award procedure ; 

(9) 

'concessionaire’ means an economic operator which has been awarded a concession. 

(10) 

"economic operator’ means any natural or legal person, or public entity, or a group of 
such  persons  and/or  entities  which  offers  the  execution  of  works  and/or  a  work, 
supplies or services on the market. 

(11) 

'tenderer’ means an economic operator that has submitted a tender  

(12) 

(13) 

(14) 

2. 

‘electronic  means’  means  using  electronic  equipment  for  the  processing  (including 
digital compression) and storage of data which is transmitted, conveyed and received 
by wire, by radio, by optical means or by other electromagnetic means. 

'concession  documents’  means  all  documents  produced  or  referred  to  by  the 
contracting  authority  or  contracting  entity  to  describe  or  determine  elements  of  the 
procurement  or  the  procedure,  including  the  contract  notice,  the  technical 
specifications,  proposed  conditions  of  contract,  formats  for  the  presentation  of 
documents  by  candidates  and  tenderers,  information  on  generally  applicable 
obligations and any additional documents. 

‘life  cycle’  means  all  consecutive  and/or  interlinked  stages,  including  production, 
transport, use and maintenance, throughout the existence of a product or a works or 
the provision of a service, from raw material acquisition or generation of resources to 
disposal, clearance and finalisation. 

The right to exploit the works or services as referred to in points 2, 4 and 7 of the 
first  paragraph  shall  impliy  the  transfer  to  the  concessionaire  of  the  substantial 
operating  risk.  The  concessionaire  shall  be  deemed  to  assume  the  substantial 

EN 

25 

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operating risk where it is not guaranteed to recoup the investments made or the costs 
incurred  in  operating  the  works  or  the  services  which  are  the  subject-matter  of  the 
concession. 

That economic risk may consist in either of the following: 

(a) 

(b) 

the  risk  related  to  the  use  of  the  works  or  the  demand  for  the 
provision of the service; or 

the risk related to the availability of the infrastructure provided by 
the concessionaire or used for the provision of services to users.  

Article 3 
Contracting authorities 

1. 

2. 

3. 

4. 

For  the  purposes  of  this  Directive  ‘Contracting  authorities’  are  State,  regional  or 
local authorities, bodies governed by public law, associations formed by one or more 
such authorities or one or more such bodies governed by public law, other than those 
awarding a concession for the purpose of pursuing an activity as refrred to in Annex 
III.. 

'Regional authorities’ include all authorities of the administrative units falling under 
NUTS  1  and  2,  as  referred  to  by  Regulation  No.  (EC)  1059/2003  of  the  European 
Parliament and of the Council16. 

'Local  authorities’  include  all  authorities  of  the  administrative  units  falling  under 
NUTS  3  and  smaller  administrative  units,  as  referred  to  by  Regulation  No. 
1059/2003. 

'Bodies  governed  by  public  law’  means  bodies  that  have  all  of  the  following 
characteristics: 

(a) 

they are established for or have the specific purpose of meeting needs in 
the general interest, not having an industrial or commercial character;  

(b) 

they have legal personality;  

(c) 

they  are  financed,  for  the  most  part,  by  the  State,  regional  or  local 
authorities,  or  other  bodies  governed  by  public  law;  or  subject  to 
management  supervision  by  those  bodies;  or  have  an  administrative, 
managerial or supervisory board, more than half of whose members are 
appointed  by  the  State,  regional  or  local  authorities,  or  by  other  bodies 
governed by public law. 

For  the  purpose  of  point  (a)  of  the  first  subparagraph,  a  body  which  operates  in 
normal market conditions, aims to make a profit, and bears the losses resulting from 
the  exercise  of  its  activity,  it  does  not  have  the  purpose  of  meeting  needs  in  the 
general interest, not having an industrial or commercial character. 

16 

OJ L 154, 21.6.2003, p. 1 

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26 

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Article 4 
Contracting entities  

1. 

For the purposes of this Directive , "Contracting entities" are one of the following: 

(1) 

state,  regional  or  local  authorities,  bodies  governed  by  public  law, 
associations formed by one or more such authorities or one or more such 
bodies governed by public law as defined in paragraphs 2-4 of Article 3.  

(2)  public undertakings as defined in paragraph 2 of this Article;  

(3) 

entities  which  are  not  contracting  authorities  or  public  undertakings, 
operating  on  the  basis  of  special  or  exclusive  rights  granted  by  a 
competent authority of a Member State  

when they   award a  concession  for  the  purpose of pursuing  one of  the  activities as  
referred to in Annex III. 

2. 

A ‘public undertaking’ is any undertaking over which the contracting authorities may 
exercise directly or indirectly a dominant influence by virtue of their ownership of it, 
their financial participation therein, or the rules which govern it. 

A  dominant  influence  on  the  part  of  the  contracting  authorities  shall  be  presumed 
when these authorities, directly or indirectly, in relation to an undertaking: 

(a) 

hold the majority of the undertaking's subscribed capital, or 

(b) 

(c) 

control  the  majority  of  the  votes  attaching  to  shares  issued  by  the 
undertaking, or 

can  appoint  more  than  half  of  the  undertaking's  administrative, 
management or supervisory body. 

3. 

‘Special  or  exclusive  rights’  mean  rights  granted  by  a  competent  authority  of  a 
Member  State  by  way  of  any  legislative, regulatory  or  administrative  provision  the 
effect  of  which  is  to  limit  the  exercise  of  activities  defined  in  Annex  III  to  one  or 
more entities, and which substantially affects the ability of other entities to carry out 
such activity. 

Rights which have been granted by means of a procedure in which adequate publicity 
has  been  ensured  and  where  the  granting  of  those  rights  was  based  on  objective 
criteria  shall  not  constitute  "special  or  exclusive  rights"  within  the  meaning  of  this 
Directive. Such procedure includes: 

 (a)  procurement  procedures  with  a  prior  call  for  competition  in  conformity 

with Directive [2004/18/EC or 2004/17/EC] or this Directive 

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27 

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(b)  procedures pursuant to other legislative acts of the Union, listed in Annex 
XI,  ensuring  adequate  prior  transparency  for  granting  authorisations  on 
the basis of objective criteria. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 46 to modify the list of the Union legislative acts set out in Annex XI where, 
due  to  the  adoption  of  new  Union  legislation  or  repeal  of  Union  legislation,  such 
modification proves necessary. 

Article 5 
Thresholds 

1. 

This Directive shall apply to the following concessions the value of which is equal to 
or greater than EUR 5 000 000:  

2. 

1. 

2. 

3. 

(a) 

concessions concluded by contracting entities for the pursuit of one of the 
activities referred to in Annex III;  

(b) 

concessions concluded by contracting authorities.  

Services concessions the value of which is equal to or greater than EUR 2 500 000 
but lower than EUR 5 000 000 other than social services and other specific services 
shall be subject to the obligation to publish a concession award notice in accordance 
with Articles 27 and 28. 

Article 6 
Methods for calculating the estimated value of concessions  

The  calculation  of  the  estimated  value  of  a  concession  shall  be  based  on  the  total 
amount  payable,  net  of  VAT,  as  estimated  by  the  contracting  authority  or  the 
contracting entity, including any form of option and any extension of the duration of 
the concession.  

The estimated value of a concession shall be calculated as the value of an  entirety of 
works or services, even if purchased through different contracts, where the contracts 
are  part  of  one  single  project.  Indications  for  the  existence  of  one  single  project 
consist  in  overall  prior  planning  and  conception  by  the  contracting  authority  or 
contracting  entity,  the  fact  that  the  different  elements  purchased  fulfil  a  single 
economic and technical function or that they are otherwise logically interlinked. 

Where  the  contracting  authority  or  the  contracting  entity  provides  for  prizes  or 
payments to candidates or tenderers it shall take them into account when calculating 
the estimated value of the concession. 

The choice of the method used to calculate the estimated value of a concession shall 
not  be  made  with  the  intention  of  excluding  it  from  the  scope  of  this  Directive.  A 
works  project  or  an  entirety  of  services  shall  not  be  subdivided  with  the  effect  of 
preventing  it  from  falling  within  the  scope  of  this  Directive,  unless  justified  by 
objective reasons. 

EN 

28 

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4. 

5. 

6. 

7. 

8. 

9. 

This estimate shall be valid at the moment at which the concession notice is sent, or, 
in  cases  where  such  notice  is  not  foreseen,  at  the  moment  at  which  the  contracting 
authority  or  the  contracting  entity  commences  the  concession  award  procedure,  in 
particular by defining the essential characteristics of the intended concession. 

With regard  to public works concessions and works concessions, calculation of the 
estimated  value  shall  take  account  of  both  the  cost  of  the  works  and  the  total 
estimated value of the supplies and services that are made available to the contractor 
by  the  contracting  authorities  or  entities  provided  that  they  are  necessary  for 
executing the works. 

Where  a  proposed  work  or  purchase  of  services  may  result  in  concessions  being 
awarded at the same time in the form of separate lots, account shall be taken of the 
total estimated value of all such lots. 

Where the aggregate value of the lots is equal to or exceeds the threshold laid down 
in Article 5, this Directive shall apply to the awarding of each lot. 

Contracting authorities or contracting entities may award concessions for individual 
lots without applying the provisions on the award provided for under this Directive, 
provided that the estimated value net of VAT of the lot concerned is less than EUR 1 
million. However, the aggregate value of the lots thus awarded without applying this 
Directive shall not exceed 20% of the aggregate value of all the lots into which the 
proposed work or the proposed purchase of services has been divided. 

The value of services concessions shall be the estimated total value of services to be 
provided  by  the  concessionaire  during  the  whole  duration  of  the  concession, 
calculated in accordance with an objective methodology which shall be specified in 
the concession notice or in the concession documents.  

The basis for calculating the estimated concession value shall, where appropriate, be 
the following: 

(a) 

(b) 

(c) 

for  insurance  services:  the  premium  payable  and  other  forms  of 
remuneration; 

for banking and other financial services:  fees, commissions, interest and 
other forms of remuneration; 

for  design  services:  fees,  commission  payable  and  other  forms  of 
remuneration; 

10. 

The  value  of  concessions  shall  include  both  the  estimated  revenue  to  be  received 
from  third  parties  and  the  amounts  to  be  paid  by  the  contracting  authority  or  the 
contracting entity. 

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Article 7 
General Principles  

Contracting  authorities  and  contracting  entities  shall  treat  economic  operators  equally  and 
shall  act  in  a  transparent  and  proportionate  way.  The  design  of  the  concession  award 
procedure shall not be made with the objective of excluding it from the scope of this Directive 
or of artificially narrowing competition.  

SECTION II 
EXCLUSIONS 

Article 8 
Exclusions applicable to concessions awarded by contracting authorities and contracting 
entities 

1. 

2. 

3. 

This  Directive  shall  not  apply  to  services  concessions  awarded  by  a  contracting 
authority  or  by  a  contracting  entity  to  an  economic  operator  which  is  a  contracting 
entity or an association of thereof, on the basis of an exclusive right that economic 
operator  enjoys  pursuant  to  applicable  and  published  national  law,  regulation  or 
administrative provision, and which has been granted in accordance with the Treaty 
and 
the  management  of  networks 
infrastructure related to the activities set out in annex III. 

legislation  concerning 

  Union  sectoral 

By way of derogation from paragraph 1 of this Article, where sectoral legislation referred to 
in  paragraph  1  of  this  Article  does  not  provide  for  sector  specific  transparency 
obligations, the requirements of Article 27 (1) and (3) shall apply 

This  Directive  shall  not  apply  to  concessions  which  the  contracting  authority  or  a 
contracting  entity  is  obliged  to  award  or  organise  in  accordance  with  procurement 
procedures set out in: 

(a) 

an  international  agreement  concluded  in  conformity  with  the  Treaty 
between  a  Member  State  and  one  or  more  third  countries  and  covering 
works,  supplies  or  services  intended  for  the  joint  implementation  or 
exploitation of a project by the signatory States;  

(b) 

a  concluded  international  agreement  relating  to  the  stationing  of  troops 
and concerning the undertakings of a Member State or a third country; 

(c) 

the particular procedure of an international organisation. 

(d)  where the concessions are fully financed by an international organisation 

or international financing institution. 

All  agreements  referred  to  in  point  (a)  of  the  first  subparagraph  shall  be 
communicated to the Commission, which may consult the Advisory Committee for 
Public Contracts referred to in Article 48. 

For  the  purposes  of  point  (d)  of  the  first  subparagraph,  where  a  concession  is  co-
financed  for  a  considerable  part  by  an  international  organisation  or  international 

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financing  institution  the  parties  decide  on  applicable  concession  award  procedures 
which shall be in conformity with the provisions of the Treaty on the Functioning of 
the European Union. 

4. 

Subject to Article 346 of the Treaty , this Directive shall not apply to the awarding of 
concessions in the fields of defence and security to the extent that the protection of 
the essential security interests of a Member State cannot be guaranteed by the rules 
provided for in this Directive. 

5. 

This Directive shall not apply to service concessions for: 

(a) 

(b) 

the  acquisition  or  rental,  by  whatever  financial  means,  of  land,  existing 
buildings  or  other  immovable  property  or  concerning  rights  thereon; 
however  financial  service  concessions  awarded  at  the  same  time  as, 
before  or  after  the  contract  of  acquisition  or  rental,  in  whatever  form, 
shall be subject to this Directive; 

intended  for  broadcasting,  defined  as 

the acquisition, development, production or co-production of programme 
material 
transmission  and 
distribution  using  any  form  of  electronic  network,  that  are  awarded  by 
broadcasters, nor to concessions for broadcasting time, that are awarded 
to broadcasters;  

(c) 

arbitration and conciliation services; 

(d) 

financial services in connection with the issue, sale, purchase or transfer 
of  securities  or  other  financial  instruments  within  the  meaning  of 
Directive  2004/39/EC  of  the  European  Parliament  and  of  the  Council, 
central  bank  services  and  operations  conducted  with  the  European 
Financial Stability Facility (EFSF);  

(e) 

employment contracts; 

(f)  Air  transport  services  based  on  the  grant  of  an  operating  licence  within 
the meaning of Regulation (EC) 1008/200817 of the European Parliament  
and of the Council 18; 

(g)  Public  passenger  transport  services  within  the  meaning  of  Regulation 
(EC) 1370/2007 of the European Parliament  and of the Council.19 

The  broadcasting  referred  to  in  point  (b)  of  the  first  paragraph  shall  include  any 
transmission and distribution using any form of electronic network. 

17 

18 
19 

Regulation of the European Parliament  and of the Council of 24 September 2008 on common rules for 
the operation of air services in the Community 
OJ L 293, 31.10.2008, p. 3.  
OJ L 315, 3.12.2007, 

EN 

31 

   EN 

 
                                                 
Article 9 
Specific exclusions in the field of electronic communications 

This  Directive  shall  not  apply  to  concessions    for  the  principal  purpose  of  permitting  the 
contracting authorities to provide or exploit public communications networks or to provide to 
the public one or more electronic communications services. 

For the purposes of this Article: 

(a) 

(b) 

(c) 

(d) 

1. 

2. 

‘public communications network’ means an electronic communications network used 
wholly or mainly for the provision of electronic communications services available 
to the public which support the transfer of information between network termination 
points; 

'electronic  communications  network'  means  transmission  systems  and,  where 
applicable,  switching  or  routing  equipment  and  other  resources,  including  network 
elements  which  are  not  active,  which  permit  the  conveyance  of  signals  by  wire, 
radio,  optical  or  other  electromagnetic  means,  including  satellite  networks,  fixed 
(circuitand  packet-switched,  including  Internet)  and  mobile  terrestrial  networks, 
electricity  cable  systems,  to  the  extent  that  they  are  used  for  the  purpose  of 
transmitting signals, networks used for radio and television broadcasting, and cable 
television networks, irrespective of the type of information conveyed ; 

a ‘network termination point’ (NTP) means the physical point at which a subscriber 
is provided with access to a public communications network; in the case of networks 
involving switching or routing, the NTP is identified by means of a specific network 
address, which may be linked to a subscriber number or name; 

 ‘electronic  communications  services’  means  a  service  normally  provided  for 
remuneration  which  consists  wholly  or  mainly  in  the  conveyance  of  signals  on 
electronic  communications  networks,  including  telecommunications  services  and 
transmission  services  in  networks  used  for  broadcasting,  but  exclude  services 
providing,  or  exercising  editorial  control  over,  content  transmitted  using  electronic 
communications  networks  and  services;  it  does  not  include  information  society 
services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly 
or mainly in the conveyance of signals on electronic communications networks. 

Article 10 
Exclusions applicable to concessions awarded by contracting entities 

This  Directive  shall  not  apply  to  concessions  awarded  by  contracting  entities  for 
purposes other than the pursuit of their activities as described in Annex III or for the 
pursuit of such activities in a third country, in conditions not involving the physical 
use of a network or geographical area within the Union. 

Contracting  entities  shall  notify  the  Commission  or  the  national  oversight  body  at 
their request of any activities which they regard as excluded. The Commission may 
periodically  publish  in  the  Official  Journal  of  the  European  Union  for  information 
purposes, lists of the categories of activities which it considers to be covered by this 
exclusion.  In  so  doing,  the  Commission  shall  respect  any  sensitive  commercial 
aspects that the contracting entities may point out when forwarding this information. 

EN 

32 

   EN 

 
Article 11 
Concessions awarded to an affiliated undertaking 

1. 

2. 

For the purposes of this Article, "affiliated undertaking" means any undertaking the 
annual  account  of  which  are  consolidated  with  those  of  the  contracting  entity  in 
accordance with the requirements of the Seventh Council Directive 83/349/EEC20. 

In  the  case  of  entities  not  subject  to  that  Directive,  "affiliated  undertaking"  shall 
mean any undertaking that : 

(a)  may  be,  directly  or  indirectly,  subject  to  a  dominant  influence  by  the 
contracting entity within the meaning of the second paragraph of Article 
4 of this Directive; 

(b)  may exercise a dominant influence over the contracting entity;  

(c) 

 in  common  with  the  contracting  entity,  is  subject  to  the  dominant 
influence  of  another  undertaking  by  virtue  of  ownership,  financial 
participation, or the rules which govern it. 

3. 

Article 15 notwithstanding and provided that the conditions in paragraph 4 are met, 
this Directive shall not apply to the following concessions: 

(a) 

concessions awarded by a contracting entity to an affiliated undertaking; 

(b) 

concessions awarded by a joint venture, formed exclusively by a number 
of contracting entities for the purpose of carrying out activities described 
in  Annex  III,  to  an  undertaking  which  is  affiliated  with  one  of  those 
contracting entities. 

4. 

Paragraph 3 shall apply: 

(a) 

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

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

Where,  because  of  the  date  on  which  an  affiliated  undertaking  was  created  or 
commenced activities, the turnover is not available for the preceding three years, it 
shall be sufficient for that undertaking to show that the turnover referred to in points 
(a) or (b)  of paragraph 4   is credible, particularly by means of business projections. 

OJ  L  193,  18.7.1983,  p.  1.  Directive  as  last  amended  by  Directive  2001/65/EC  of  the  European 
Parliament and of the Council (OJ L 283, 27.10.2001, p. 28). 

5. 

20 

EN 

33 

   EN 

 
 
                                                 
6. 

Where more than one undertaking affiliated with the contracting entity provides the 
same  or  similar  services,  supplies  or  works,  the  above  percentages  referred  to  in 
paragraph  4  shall  be  calculated  taking  into  account  the  total  turnover  deriving 
respectively  from  the  provision  of  services,  supplies  or  works  by  those  affiliated 
undertakings. 

Article 12 
Concessions awarded to a joint venture or to a contracting entity forming part of a joint 
venture 

Article  15  notwithstanding,  and  provided  that  the  joint  venture  has  been  set  up  in  order  to 
carry out the activity concerned over a period of at least three years and that the instrument 
setting up the joint venture stipulates that the contracting entities, which form it, will be part 
thereof for at least the same period, this Directive shall not apply to concessions awarded by 
any of the following: 

(a) 

by a joint venture, formed exclusively by a number of contracting entities 
for  the  purpose  of  carrying  out  activities  within  the  meaning  of  Annex 
III, to one of these contracting entities, or 

(b)  by a contracting entity to such a joint venture of which it forms part.  . 

Article 13 
Notification of information by contracting entities 

Contracting  entities  shall  notify  to  the  Commission  or  the  national  oversight  body,  at  their 
request, the following information regarding the application of paragraphs 2 and 3 of Article 
11 and of Article 12.  

(a) 

the names of the undertakings or joint ventures concerned, 

(b) 

the nature and value of the concessions involved, 

(c) 

proof  deemed  necessary  by  the  Commission  or  the  national  oversight 
body  that  the  relationship  between  the  undertaking  or  joint  venture  to 
which  the  concessions  are  awarded  and  the  contracting  entity  complies 
with the requirements of Articles 11 or 12. 

Article 14 
Exclusion of activities which are directly exposed to competition 

This  Directive  shall  not  apply  to  concessions  awarded  by  contracting  entities  where,  in  the 
Member  State  in  which  such  concessions  are  performed  the  activity  is  directly  exposed  to 
competition  in  accordance  with  Article  27  and  28  of  Directive  [replacing  Directive 
2004/17/EC]. 

EN 

34 

   EN 

 
Article 15 
Relations between public authorities 

1. 

A concession awarded by a contracting authority or a contracting entity as referred to 
in paragraph 1 subparagraph 1 of Article 4 to another legal person shall fall outside 
the scope of this Directive where the following cumulative conditions are fulfilled: 

2. 

3. 

a) 

b) 

such an authority or entity exercises over the legal person concerned a control 
which is similar to that which it exercises over its own departments 

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

c) 

there is no private participation in the controlled legal person 

A  contracting  authority  or  a  contracting  entity  as  referred  to  in  paragraph  1 
subparagraph 1 of Article 4 shall be deemed to exercise over a legal person a control 
similar  to  that  which  it  exercises  over  its  own  departments  within  the  meaning  of 
point (a) of the first subparagraph where it exercises a decisive influence over both 
strategic objectives and significant decisions of the controlled legal person.  

Paragraph 1 also applies where a controlled entity which is a contracting authority or 
contracting entity as referred to in paragraph 1 subparagraph 1 of Article 4 awards a 
concession to its controlling entity, or to another legal person controlled by the same 
contracting  authority,  provided  that  there  is  no  private  participation  in  the  legal 
person being awarded the public concession. 

A  contracting  authority  or  a  contracting  entity  as  referred  to  in  paragraph  1 
subparagraph  1  of  Article  4,  which  does  not  exercise  over  a  legal  person  control 
within  the  meaning  of  paragraph  1,  may  nevertheless  award  a  concession  without 
applying  the  provisions  of  the  current  Directive  to  a  legal  person  which  it  controls 
jointly  with  other  such  contracting  authorities  or  entities,  where  the  following 
conditions are fulfilled:  

a) 

b) 

the  contracting  authorities  or  entities  as  referred  to  in  paragraph  1 
subparagraph  1  of  Article  4  exercise  jointly  over  the  legal  person  a  control 
which is similar to that which it exercises over its own departments.  

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

c) 

there is no private participation in the controlled legal person. 

For  the  purposes  of  point  (a),  contracting  authorities  or  entities  as  referred  to  in 
paragraph  1  subparagraph  1  of  Article  4  shall  be  deemed  to  jointly  control  a  legal 
person where the following cumulative conditions are fulfilled:    

EN 

35 

   EN 

 
(a) 

(b) 

(c) 

(d) 

the  decision-making  bodies  of  the  controlled  legal  person  are  composed  of 
representatives of all participating contracting authorities or contracting entities 
as referred to in paragraph 1 subparagraph 1 of Article 4;  

those contracting authorities or contracting entities as referred to in paragraph 1 
subparagraph 1 of Article 4 are able to jointly exert decisive influence over the 
strategic objectives and significant decisions of the controlled legal person;  

the  controlled  legal  person  does  not  pursue  any  interests  which  are  distinct 
from that of the public authorities affiliated to it;  

the  controlled  legal  person  does  not  draw  any  gains  other  than  the 
reimbursement  of  actual  costs  from  the  public  contracts  with  the  contracting 
authorities. 

4. 

An agreement concluded between two or more contracting authorities or contracting 
entities as referred to in paragraph 1 subparagraph 1 of Article 4 shall not be deemed 
to be a concession within the meaning of point 1 of paragraph 1 of Article 2 of this 
Directive, where the following cumulative conditions are fulfilled: 

(a) 

(b) 

(c) 

(d) 

(e) 

the  agreement  establishes  a  genuine  co-operation  between  the  participating 
contracting  authorities  or  entities  aimed  at  carrying  out  jointly  their  public 
service tasks and involving mutual rights and obligations of the parties; 

the  agreement  is  governed  only  by  considerations  relating  to  the  public 
interest; 

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

the  agreement  does  not  involve  financial  transfers  between  the  participating 
contracting  authorities  or  entities,  other  than  those  corresponding  to  the 
reimbursement of actual costs of the works, services or supplies; 

there is no private participation in any of the contracting authorities or entities 
involved.  

5. 

The absence of private participation referred to in paragraphs 1 to 4 shall be verified 
at the time of the award of the concession or of the conclusion of the agreement.  

The exceptions provided for in this Article shall cease to apply from the moment any 
private participation takes place, with the effect that ongoing concessions need to be 
opened to competition through regular concession award procedures. 

EN 

36 

   EN 

 
SECTION III 
GENERAL PROVISIONS 

Article 16 
Duration of the concession 

The duration of the concession shall be limited to the time estimated to be necessary for the 
concessionaire  to  recoup  the  investments  made  in  operating  the  works  or  services  together 
with a resonable return on invested capital. 

Article 17 
Social and other specific services  

Concessions for social and other specific services listed in Annex X falling within the scope 
of this Directive shall be subject to the obligation of paragraph 3 of Art. 26 and of paragraph 1 
of Article 27. 

Article 18 
Mixed  concessions 

1. 

2. 

3. 

4. 

5. 

Contracts which have as their object both services and supplies shall be awarded in 
accordance with  this Directive where the main object of the contract in question are 
services and where they are concessions within the meaning of point (1) of the first 
paragraph of Article 2 

Concessions which have as their object both services within the meaning of Article 
17 and other services shall be awarded in accordance with the provisions applicable 
to the type  of service that characterises the main object of the contract in question.  

In the case of mixed contracts referred to in paragraphs 1 and 2, the main object shall 
be determined by a comparison of the values of the respective services or supplies. 

Where contracts have as their object concessions covered by this Directive as well as 
procurement  or  other  elements  not  covered  by  it  nor  by  Directives  [replacing 
2004/17/EC  and  Directive  2004/18]  or  2009/81/EC,  the  part  of  the  contract  which 
constitutes  a  concession  covered  by  this  Directive  shall  be  awarded  in  accordance 
with this Directive.  However, when the different parts of the contract are objectively 
not separable, the application of this Directive shall be determined on the basis of the 
main subject of that contract. 

In the case of concessions subject to this Directive and contracts subject to [Directive 
2004/18/EC  or  2004/17/EC]  or  2009/81/EC21,  the  part  of  the  contract  which 
constitutes  a  concession  covered  by  this  Directive  shall  be  awarded  in  accordance 
with the provisions thereof.  

21 

OJ L 217, 20.8.2009, p. 76. 

EN 

37 

   EN 

 
                                                 
Where  the  different  parts  of  such  contracts  are  not  objectively  separable,  the 
application of this Directive shall be determined on the basis of the main subject of 
that contract. 

Article 19 
Concessions covering several activities 

1. 

2. 

3. 

A concession which is intended to cover several activities shall be subject to the rules 
applicable to the activity for which it is principally intended. 

However, the choice between awarding a single concession and awarding a number 
of separate concessions may not be made with the objective of excluding it from the 
scope of this Directive. 

Where one of the activities for which the concession subject to the provisions of this 
Directive  is  intended  is  listed  in  Annex  III  and  the  other  is  not  listed  therein  and 
where it is objectively impossible to determine for which activity the concession is 
principally  intended,  the  concession  shall  be  awarded  in  accordance  with  the 
provisions applicable to concessions awarded by contracting authorities. 

If one of the activities for which the contract or the concession is intended is subject 
to  this  Directive  and  the  other  is  not  subject  to  either  this  Directive  or  [Directive 
2004/18/EC  or  2004/17/EC]  or  2009/81/EC22and  if  it  is  objectively  impossible  to 
determine  for  which  activity  the  contract  or  the  concession  is  principally  intended, 
the contract or the concession shall be awarded in accordance with this Directive. 

SECTION IV 
SPECIFIC SITUATIONS 

Article 20 
Reserved concessions 

Member  States  may  reserve  the  right  to  participate  in  concession  award  procedures  to 
sheltered workshops and economic operators whose main aim is the social and professional 
integration  of  disabled  and  disadvantaged  workers  or  provide  for  such  concessions  to  be 
performed in the context of sheltered employment programmes provided that more than 30% 
of  the  employees  of  those  workshops,  economic  operators  or  programmes  are  disabled  or 
disadvantaged workers. The concession notice shall make reference to this provision. 

Article 21 
Research and development services 

1. 

This  Directive  shall  apply  to  service  concessions  for  research  and  development 
services with CPV reference numbers 73000000-2 to 73436000-7, except 73200000-

22 

OJ L 217, 20.8.2009, p. 76. 

EN 

38 

   EN 

 
                                                 
2. 

3. 

1. 

2. 

3. 

4. 

4,  73210000-7  or  73220000-0,  provided  that  the  following  conditions  are  both 
fulfilled: 

(a) 

(b) 

the  benefits  accrue  exclusively  to  the  contracting  authority  or  contracting 
entity for use in the conduct of its own affairs,  

the  service  provided  is  wholly  remunerated  by  the  contracting  authority  or 
contracting entity  

This  Directive  shall  not  apply  to  public  service  concessions  for  research  and 
development  services  with  CPV  reference  numbers  73000000-2  to  73436000-7, 
except 73200000-4, 73210000-7 or 73220000-0 where one of the above conditions is 
not met. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 46 concerning the reference numbers of this Article, whenever changes in the 
CPV  nomenclature  must  be  reflected  in  this  Directive  and  they  do  not  imply  a 
modification of the scope of this Directive. 

CHAPTER II 
Principles 

Article 22 
Economic operators 

Economic  operators  that,  under  the  law  of  the  Member  State  in  which  they  are 
established, are entitled to provide the relevant service, shall not be rejected solely on 
the  ground  that,  under  the  law  of  the  Member  State  in  which  the  concession  is 
awarded, they would be required to be either natural or legal persons. 

However, legal persons may be required to indicate in the tender or the application, 
the names  and  relevant professional  qualifications of the staff to be responsible for 
the performance of the concession in question. 

Groups  of  economic  operators  may  submit  tenders  or  put  themselves  forward  as 
candidates.  

Contracting authorities and contracting entities shall not establish specific conditions 
for  participation  of  such  groups  in  concession  award  procedures  which  are  not 
imposed on individual candidates. In order to submit an application or a tender, these 
groups shall not be required by the contracting authorities or contracting entities to 
assume a specific legal form.  

Contracting authorities and contracting entities may establish specific conditions for 
the  performance  of  the  concession  by  a  group,  provided  that  those  conditions  are 
justified  by  objective  reasons  and  proportionate.  Those  conditions  may  require  a 
group to assume a specific legal form once it has been awarded the contract, to the 

EN 

39 

   EN 

 
 
1. 

2. 

1. 

2. 

1. 

extent  that  this  change  is  necessary  for  the  satisfactory  performance  of  the 
concession. 

Article 23 
Nomenclatures 

Any references to nomenclatures in the context of the award of concessions shall be 
made using the ‘Common Procurement Vocabulary (CPV)’ as adopted by Regulation 
(EC) No 2195/200223. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 46 to adapt the reference numbers used in Annex I and X, whenever changes 
in the CPV nomenclature must be reflected in this Directive and they do not imply a 
modification of the scope of this Directive. 

Article 24 
Confidentiality 

Unless otherwise provided in this Directive or in the national law concerning access 
to information, and without prejudice to the obligations relating to the advertising of 
awarded  contracts  and  to  the  information  to  candidates  and  tenderers  set  out  in 
Articles  27  and  35  of  this  Directive,  the  contracting  authority  shall  not  disclose 
information  forwarded  to  it  by  economic  operators  which  they  have  designated  as 
confidential,  including,  but  not  limited  to,  technical  or  trade  secrets  and  the 
confidential aspects of tenders. 

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

Article 25 
Rules applicable to communication 

Except where use of electronic means is mandatory pursuant to Articles 28 (2) and 
30  of  this  Directive  contracting  authorities  and  contracting  entities  may  choose 
between  the  following  means  of  communication  for  all  communication  and 
information exchange: 

(a) 

electronic means in accordance with paragraphs 3, 4 and 5; 

(b)  post or fax;  

23 

OJ L 340, 16.12.2002, p. 1. 

EN 

40 

   EN 

 
 
                                                 
(c) 

telephone in the cases and circumstances referred to in paragraph 6, 
or  

(d) 

a combination of those means.  

Member States may make mandatory the use of electronic means of communication 
for concessions, going beyond the obligations established in Articles 28 (2) and 30 of 
this Directive.  

2. 

The  means  of  communication  chosen  must  be  generally  available  and  not  restrict 
economic operators' access to the concession award procedure. 

In  all  communication,  exchange  and  storage  of  information,  contracting  authorities 
and contracting entities shall ensure that the integrity of data and the confidentiality 
of tenders and applications are preserved. They shall examine the content of tenders 
and applications only after the time limit set for submitting them has expired. 

3. 

The  tools  to  be  used  for  communicating  by  electronic  means,  as  well  as  their 
technical  characteristics,  shall  be  non-discriminatory,  generally  available  and 
interoperable  with  the  information  and  communication  technology  products  in 
general use and shall not restrict economic operators' access to the concession award 
procedure. The technical details and characteristics of the devices for the electronic 
receipts to be deemed in compliance with the first subparagraph of this paragraph are 
set out in Annex XII 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 46 to amend the technical details and characteristics set out in Annex XII due 
to technical developments or administrative reasons. 

To  ensure  the  interoperability  of  technical  formats  as  well  as  of  process  and 
messaging standards, especially in a cross-border context, the Commission shall be 
empowered  to  adopt  delegated  acts  in  accordance  with  Article  46  to  establish  the 
mandatory  use  of  specific  technical  standards,  at  least  with  regard  to  the  use  of  e-
submission, electronic catalogues and means for electronic authentication.  

4. 

Contracting authorities and contracting entities may, where necessary, require the use 
of tools which are not generally available, provided that they offer alternative means 
of access. 

Contracting  authorities  and  contracting  entities  shall  be  deemed  to  offer  suitable 
alternative means of access in any of the following situations:  

(a)  They offer unrestricted and full direct access by electronic means to these tools 
from the date of publication of the notice in accordance with Annex IX or from 
the date when the invitation to confirm interest is sent; the text of the notice or 
the  invitation  to  confirm  interest  shall  specify  the  internet  address  at  which 
these tools are accessible; 

(b) 

ensure  that  tenderers  established  in  other  Member  States  than  the  contracting 
authority's  may  access  the  concession  award  procedure  through  the  use  of 
provisional tokens made available online at no extra cost; 

EN 

41 

   EN 

 
(c) 

support an alternative channel for electronic submission of tenders. 

5. 

The following rules shall apply to devices for the electronic transmission and receipt 
of tenders and for the electronic transmission and receipt of applications: 

a) 

b) 

c) 

information on specifications for the electronic submission of tenders and 
requests to participate, including encryption and time-stamping, shall be 
available to interested parties; 

devices,  methods  for  authentication  and  electronic  signatures  shall 
comply with the requirements of Annex XII; 

contracting authorities  and  contracting  entities  shall  specify  the  level  of 
security  required  for  the  electronic  means  of  communication  in  the 
various  stages  of  the  concession  award  procedure  followed.  The  level 
shall be proportionate to the risks attached.  

d)  where  advanced  Electronic  Signatures  as  defined  by  Directive 
1999/93/EC24  of  the  European  Parliament  and  of  the  Council  are 
required,  contracting  authorities  and  contracting  entities  shall  accept 
signatures supported by a qualified electronic certificate referred to in the 
Trusted  List  provided  for  in  the  European  Commission  Decision 
2009/767/EC25,  created  with  or  without  a  secure  signature  creation 
device, subject to compliance with the following conditions:  

(i) 

they must establish the required  advanced signature format on the 
basis  of 
in  Commission  Decision 
2011/130/EU26  and  put  in  place  necessary  measures  to  be  able  to 
process these formats technically; 

established 

formats 

(ii)  where a tender is signed with the support of a qualified certificate 
that is included in the  Trusted list,  they  must  not  apply  additional 
requirements  that  may  hinder  the  use  of  those  signatures  by 
tenderers. 

6. 

The following rules shall apply to the transmission of applications to participate: 

(a) 

(b) 

applications to participate  in a procedure for the award of a concession may be 
made in writing or by telephone; in the latter case, a written confirmation must 
be sent before expiry of the time limit set for their receipt; 

contracting authorities or contracting entities may require that applications for 
participation made by fax must be confirmed by post or by electronic means, 
where this is necessary for the purposes of legal proof.  

For the purposes of point (b), the contracting authority or entity shall indicate in the 
concession notice or in the invitation to confirm interest that it requires applications 

24 
25 
26 

OJ L 13, 19.1.2000, p. 12.  
OJ L 274, 20.10.2009, p. 36. 
OJ L 53, 26.2.2011, p. 66. 

EN 

42 

   EN 

 
                                                 
to  participate  made  by  fax  to  be  confirmed  by  post  or  by  electronic  means  and  the 
time limit for sending such confirmation 

7. 

Member  States  shall  ensure  that,  at  the  latest  5  years  after  the  date  provided  for  in 
Article 49  (1), all  procedures for  the award  of  concessions  under  this  Directive  are 
performed  using  electronic  means  of  communication,  in  particular  e-submission,  in 
accordance with the requirements of this Article. 

This  obligation  shall  not  apply  where  the  use  of  electronic  means  would  require 
specialised  tools  or  file  formats  that  are  not  generally  available  in  all  the  Member 
States  within  the  meaning  of  paragraph  3.  It is the responsibility  of the contracting 
authorities  or  contracting  entities  using  other  means  of  communication  for 
submission  of  tenders  to  demonstrate  in  the  concession  documents  that  the  use  of 
electronic  means,  due  to  the  particular  nature  of  the  information  to  be  exchanged 
with the economic operators, would require specialised tools or file formats that are 
not generally available in all the Member States. 

Contracting  authorities  and  contracting  entities  shall  be  deemed  to  have  legitimate 
reasons not to request electronic means of communication in the submission process 
in the following cases: 

(a) 

(b) 

(c) 

the  description  of  the  technical  specifications,  due  to  the  specialised 
nature  of  the  concession  award,  cannot  be  rendered  using  file  formats 
that are generally supported by commonly used applications; 

the  applications  supporting  file  formats  that  are  suitable  for  the 
description  of  the  technical  specifications  are  under  a  proprietary 
licensing  schema  and  cannot  be  made  available  for  downloading  or 
remote use by the contracting authority; 

the  applications  supporting  file  formats  that  are  suitable  for  the 
description of the technical specifications use file formats that cannot be 
handled by any other open or downloadable applications. 

8. 

Contracting  authorities  may  use  the  data  processed  electronically  for  public 
procurement  procedures  in  order  to  prevent,  detect  and  correct  errors  occuring  at 
each stage by developing appropriate tools.  

EN 

43 

   EN 

 
 
TITLE II 
RULES ON THE AWARD OF CONCESSIONS 

CHAPTER I 
Publication and Transparency 

Article 26 
Concession notices 

1. 

2. 

3. 

4. 

5. 

Contracting authorities and contracting entities wishing to award a concession shall 
make known their intention by means of a concession notice.  

Concession notices shall contain the information referred to in part of Annex IV and, 
where appropriate, any other information deemed useful by the contracting authority 
or entity, in accordance with the format of standard forms. 

Contracting  authorities  and  contracting  entities  wishing  to  award  a  concession  for 
social  and  other  specific  services  shall  make  known  their  intention  of  planned 
concession  award  through  the  publication  of  a  prior  information  notice  as  soon  as 
possible  after  the  beginning  of  the  budgetary  year.  Those  notices  shall  contain  the 
information set out in Annex XIII.  

The Commission shall establish those standard forms. Those implementing acts shall 
be adopted in accordance with the advisory procedure referred to in Article 48. 

By way of derogation from paragraph 1, the contracting authorities and entities shall 
not be required to publish a concession notice in any of the following cases: 

(a)  where  no  tenders  or  no  suitable  tenders  or  no  applications  have  been 
submitted in response to a concession procedure, provided that the initial 
conditions of the concession contract are not substantially altered and on 
condition  that  a  report  is  sent  to  the  Commission  or  to  the  national 
oversight body designated pursuant to Article 84 of Directive [replacing 
Directive 2004/18/EC] where they so request; 

(b)  where  the  works  or  services  can  be  supplied  only  by  a  particular 
economic  operator  due  to  the  absence  of  competition  for  technical 
reasons,  the  protection  of  patents,  copyrights  or  other  intellectual 
property rights or  he protection of other exclusive rights and where  no 
reasonable alternative or substitute exists and the absence of competition 
is not the result of an artificial narrowing down of the parameters of the 
concession award; 

(c) 

for new works or services consisting in the repetition of similar works or 
services  entrusted  to  the  economic  operator  to  which  the  same 
contracting  authorities  or  contracting  entities  awarded  an  original 
concession subject to the obligation referred to in paragraph 1, provided 

EN 

44 

   EN 

 
that  such  works  or  services  are  in  conformity  with  a  basic  project  for 
which  the  original  concession  was  awarded.  The  basic  project  shall 
mention  the  extent  of  possible  additional  works  or  services  and  the 
conditions under which they will be awarded. 

As soon as the first project is put up for tender the total estimated cost of 
subsequent  works  or  services  shall  be  taken  into  consideration  by  the 
contracting  authorities  or  contracting  entities  when  they  apply  the 
provisions of Article 5 

6. 

For the purposes of point (a) of the first subparagraph, a tender shall be considered 
not to be suitable where:  

- it is irregular or unacceptable, and  

-  it  is  completely  irrelevant  to  the  concession,  being  incapable  of  meeting  the 
contracting  authority  or  contracting  entity’s  needs  as  specified  in  the  concession 
documents. 

Tenders  shall  be  considered  to  be  irregular,  where  they  do  not  comply  with  the 
concession  documents  or  where  the  prices  offered  are  sheltered  from  normal 
competitive forces. 

Tenders shall be considered to be unacceptable in any of the following cases:  

(a)  where they have been received late;  

(b) 

they  have  been  submitted  by  tenderers  who  do  not  have  the  requisite 
qualifications; 

(c)  

their  price exceeds the contracting authority or contracting entity’s budget as 
determined  prior  to  the  launching  of  the  concession  award  procedure  and 
documented in writing; 

(d) 

they have been found to be abnormally low 

Article 27 
Concession award notices 

1. 

2. 

3. 

Not  later  than  48  days  after  the  award  of  a  concession,  contracting  authorities  and 
contracting  entities  shall  send  a  concession  award  notice  on  the  results  of  the 
concession award procedure. 

The  obligation  referred  to  in  paragraph  1  shall  also  apply  to  those  services 
concessions  the  estimated  value  of  which,  as  calculated  according  to  the  method 
referred to in Article 6 (5), is equal to or higher than 2 500 000 EUR with the sole  
exception of social services and other specific services as referred to in Article 17.   

Such  notices  shall  contain  the  information  set  out  in  Annex  V  or  in  relation  to 
concessions for social services and other specific services the information set out in 
VI  and be published in accordance with the provisions of Article 28 

EN 

45 

   EN 

 
1. 

2. 

3. 

4. 

5. 

1. 

2. 

1. 

Article 28 
Form and manner of publication of notices 

The notices referred to in Articles 26 and 27 and the second subparagraph of Article 
43(6)  shall  include  the  information  set  out  Annexes  IV  to  VI  and  in  the  format  of 
standard forms, including standard forms for corrigenda.  

The  Commission  shall  establish  those  standard  forms  by  implementing  acts  to  be 
adopted in accordance with the advisory procedure referred to in Article 48. 

The  notices  shall  be  drawn  up,  transmitted  by  electronic  means  to  the  Commission 
and published in accordance with Annex IX. Notices shall be published not later than 
five  days  after  they  are  sent.  The  costs  of  publication  of  the  notices  by  the 
Commission shall be borne by the Union. 

The notices referred to in Article 26 shall be published in full in an official language 
of  the  Union  as  chosen  by  the  contracting  authority  or  contracting  entity.  That 
language version shall constitute the sole authentic text. A summary of the important 
elements of each notice shall be published in the other official languages. 

Contracting authorities and contracting entities entities shall be able to supply proof 
of the dates on which notices are dispatched. 

The  Commission  shall  give  the  contracting  authority  or  contracting  entity 
confirmation  of  the  receipt  of  the  notice  and  of  the  publication  of  the  information 
sent, indicating the date of that publication. Such confirmation shall constitute proof 
of publication. 

Contracting authorities and contracting entities may publish notices for concessions 
that  are  not  subject  to  the  publication  requirements  laid  down  in  this  Directive 
provided those notices are sent to the Commission by electronic means in accordance 
with the format and procedures for transmission indicated in Annex IX. 

Article 29 
Publication at national level  

Notices referred to in Articles 26 and 27 and the information contained therein shall 
not be published at national level before the publication pursuant to Article 28.  

Notices  published  at  national  level  shall  not  contain  information  other  than  that 
contained in the notices dispatched to the Commission but shall indicate the date of 
dispatch of the notice to the Commission. 

Article 30 
Electronic availability of concession documents  

Contracting authorities and contracting entities shall offer unrestricted and full direct 
access free of charge by electronic means to the concession documents from the date 
of publication of the  notice in accordance with Article 28 or the date on which the 

EN 

46 

   EN 

 
invitation to submit tenders is sent. The text of the notice or of these invitations shall 
specify the internet address at which this documentation is accessible. 

2. 

Provided  that  it  has  been  requested  in  good  time,  the  contracting  authorities  and 
contracting  entities  or  competent  departments  shall  supply  additional  information 
relating to the concession documents not later than six days before the deadline fixed 
for the receipt of tenders.  

CHAPTER II 
Conduct of the procedure 

SECTION I 
JOINT CONCESSIONS, TIME LIMITS AND TECHNICAL SPECIFICATIONS 

Article 31 
Joint concessions  between contracting authorities or contracting entities from different 
Member States 

1. 

2. 

3. 

Without  prejudice  to  Article  15,  contracting  authorities  or  contracting  entities  from 
different  Member  States  may  jointly  award  public  concessions  by  using  one  of  the 
means described in this Article. 

Several contracting authorities or contracting  entities  from different Member States 
may jointly award a concession. In that case, the participating contracting authorities 
or contracting entities shall conclude an agreement that determines 

(a)  which national provisions shall apply to the concession concession award 

procedure. 

(b) 

the  internal  organisation  of  the  concession  award  procedure,  including 
the  management  of  the  procedure,  the  sharing  of  responsibilities,  the 
distribution  of  the  works,  supplies  or  services  to  be  procured  and  the 
conclusion of concessions. 

When  determining  the  applicable  national  law  in  accordance  with  point  (a), 
contracting authorities or contracting entities may choose the national provisions of 
any Member State in which at least one of the participating authorities is located. 

Where several contracting authorities or contracting entities from different Member 
States  have  set  up  a  joint  legal  entity,  including  European  Groupings  of  territorial 
cooperation under Regulation (EC) N° 1082/2006 of the European Parliament and of 
the  Council27,  the  participating  contracting  authorities  or  participating  contracting 
entities shall, by a decision of the competent body of the joint legal entity, agree on 
the  applicable  national  concession  award  rules  of  one  of  the  following  Member 
States: 

27 

OJ L 210 of 31.7.2006, p. 19 

EN 

47 

   EN 

 
                                                 
(a) 

(b) 

the national provisions of the Member State where the legal body has its 
registered office;  

the  national  provisions  of  the  Member  State  where  the  legal  body  is 
carrying out its activities. 

This  agreement  may  either  apply  for  an  undetermined  period,  when  fixed  in  the 
constitutive act of the joint legal body, or may be limited to a certain period of time, 
certain types of concessions or to one or more individual concession awards. 

4. 

In  the  absence  of  an  agreement  determining  the  applicable  concession  rules,  the 
national  legislation  governing  the  concession  award  shall  be  determined  following 
the rules set out below: 

(a)  where  the  procedure  is  conducted  or  managed  by  one  participating 
contracting  authority  or  participating  contracting  entity  on  behalf  of  the 
others,  the  national  provisions  of  the  Member  State  of  that  contracting 
authority or entity shall apply;. 

(b)  where  the  procedure  is  not  conducted  or  managed  by  one  participating 
contracting  authority  or  participating  contracting  entity  on  behalf  of  the 
others, and 

(i) 

(ii) 

concerns  a  public  works  or  works  concession,  contracting 
authorities  or  entities  shall  apply  the  national  provisions  of  the 
Member State where most of the works are located; 

concerns  a  service  concession,  contracting  authorities  or  entities 
shall apply the national provisions of the Member State where the 
major part of the services is provided.; 

(c)  where it is not possible to determine the applicable national law pursuant 
to  points  (a)  or  (b),  contracting  authorities  or  entities  shall  apply  the 
national  provisions  of  the  Member  State  of  the  contracting  authority 
which bears the biggest share of the costs. 

5. 

In  the  absence  of  an  agreement  determining  the  applicable  concession  award  law 
under  paragraph  3,  the  national  legislation  governing  concession  award  procedures 
conducted  by  joint  legal  bodies  set  up  by  several  contracting  authorities  or 
contracting entities from different Member States shall be determined following the 
following rules: 

(a)  where the procedure is conducted or managed by the competent organ of 
the joint legal body, the national provisions of the Member State where 
the legal body has its registered office shall apply. 

(b)  where the procedure is conducted or managed by a member of the legal 
body on behalf of that legal body, the rules set out in points (a) and (b) of 
paragraph 4 shall apply. 

(c)  where it is not possible to determine the applicable national law pursuant 
to  points  (a)  or  (b)  of  paragraph  4,  the  contracting  authorities  or 

EN 

48 

   EN 

 
6. 

7. 

8. 

contracting  entities  shall  apply  the  national  provisions  of  the  Member 
State where the legal body has its registered office. 

One  or  more  contracting  authorities  or  one  or  more  contracting  entities  may  award 
individual concessions under a framework agreement concluded by or jointly with a 
contracting authority located in another Member State, provided that the framework 
agreement contains specific provisions enabling the respective contracting authority 
or  contracting  authorities  or  to  award  contracting  entity  or  contracting  entities  the 
individual concessions. 

Decisions  on  the  award  of  concessions  in  cross-border  concession  award  shall  be 
subject  to  the  ordinary  review  mechanisms  available  under  the  national  law 
applicable. 

In order to enable the effective operation of review mechanisms, Member States shall 
allow  the  decisions  of  review  bodies  within  the  meaning  of  Council  Directive 
89/665/EEC28 and of Council Directive 92/13/EEC located in other Member States to 
be  fully  executed  in  their  domestic  legal  order,  where  such  decisions  involve 
contracting  authorities  or  contracting  entities  established  on 
territory 
participating in the relevant cross-border concession award procedure.  

their 

Article 32 
Technical specifications 

1. 

The technical specifications as  defined in point 1 of Annex VIII  shall be set out in 
the concession documents. They shall define the characteristics required of a works, 
service or supply.. 

These characteristics may also refer to the specific process of production or provision 
of the requested works, supplies or services or of any other stage of its life cycle as 
referred to in point (14) of Article 2. 

 The  technical  specifications  shall  also  specify  whether  the  transfer  of  intellectual 
property rights will be required. 

For  all  concession  awards  the  subject  of  which  is  intended  for  use  by  persons, 
whether  general  public  or  staff  of  the  contracting  authority  or  contracting  entity, 
those technical specifications shall, except in duly justified cases, be drawn up so as 
to take into account accessibility criteria for people with disabilities or design for all 
users. 

Where  mandatory  accessibility  standards  are  adopted  by  a  legislative  act  of  the 
Union, technical specifications shall, as far as accessibility criteria are concerned, be 
defined by reference thereto.  

2. 

Technical  specifications  shall  guarantee  equal  access  of  economic  operators  to  the 
concession award procedure and not have the effect of creating unjustified obstacles 
to the opening up of concession award to competition. 

28 

OJ L 395, 30.12. 1989, p. 33. 

EN 

49 

   EN 

 
                                                 
3. 

Without  prejudice  to  mandatory  national  technical  rules,  to  the  extent  that  they  are 
compatible with Union law, the technical specifications shall be formulated in one of 
the following ways: 

(a) 

terms  of  performance  or 

including 
in 
environmental  characteristics,  provided 
the  parameters  are 
sufficiently precise to allow tenderers to determine the subject-matter of 
the contract and to allow contracting authorities or contracting entities to 
award the contract; 

requirements, 

functional 

that 

technical 

to  national  standards 
approvals, 

(b)  by  reference  to  technical  specifications  defined  in  Annex  VIII  and,  in 
order  of  preference, 
transposing  European 
technical 
standards,  European 
specifications,  international  standards,  other  technical  reference  systems 
established by the European standardisation bodies or — when those do 
not  exist  —  national  standards,  national  technical  approvals  or  national 
technical specifications relating to the design, calculation and execution 
of  the  works  and  use  of  the  supplies;  each  reference  shall  be 
accompanied by the words ‘or equivalent’; 

common 

(c) 

in terms of performance or functional requirements as referred to in point 
(a), with reference to the technical specifications referred to in point (b) 
as a means of presuming conformity with such performance or functional 
requirements; 

(d)  by  reference  to  the  technical  specifications  referred  to  in  point  (b)  for 
certain characteristics, and by reference to the performance or functional 
requirements referred to in point (a) for other characteristics. 

Unless  justified  by  the  subject-matter  of  the  contract,  technical  specifications  shall 
not  refer  to  a  specific  make  or  source,  or  a  particular  process,  or  to  trade  marks, 
patents,  types  or  a  specific  origin  or  production  with  the  effect  of  favouring  or 
eliminating  certain  undertakings  or  certain  products.  Such  reference  shall  be 
permitted  on  an  exceptional  basis,  where  a  sufficiently  precise  and  intelligible 
description  of  the  subject-matter  of  the  contract  pursuant  to  paragraph  3  is  not 
possible; such reference shall be accompanied by the words "or equivalent". 

Where a contracting authority or contracting entity uses the option of referring to the 
specifications referred to in point (b) of paragraph 3, it shall not reject a tender on the 
grounds  that  the  works,  supplies  and  services  tendered  for  do  not  comply  with  the 
specifications  to  which  it  has  referred,  once  the  tenderer  proves  in  its  tender  by 
whatever  appropriate  means  including  the  means  of  proof  referred  to  in  Article  33 
that  the  solutions  it  proposes  satisfy  in  an  equivalent  manner  the  requirements 
defined by the technical specifications. 

Where a contracting authority or contracting entity uses the option laid down in point 
(a)  of  paragraph  3  to  formulate  technical  specifications  in  terms  of  performance  or 
functional  requirements,  it  shall  not  reject  a  tender  for  works,  supplies  or  services 
which comply with a national standard transposing a European standard, a European 
technical approval, a common technical specification, an international standard or a 
technical  reference  system  established  by  a  European  standardisation  body,  where 

4. 

5. 

6. 

EN 

50 

   EN 

 
these specifications address the performance or functional requirements which it has 
laid down. 

In its tender, the tenderer must prove by any appropriate means including the means 
of proof referred to in Article 33 that the work, supply or service in compliance with 
the  standard  meets  the  performance  or  functional  requirements  of  the  contracting 
authority or contracting entity. 

Article 33 
Test reports, certification and other means of proof 

Contracting  authorities  or  contracting  entities  may  require  that  economic  operators 
provide a test report from a recognised body or a certificate issued by such a body as 
means of proof of conformity with the technical specifications. 

Where  contracting  authorities  require  the  production  of  certificates  drawn  up  by 
recognised  bodies  attesting  conformity  with  a  particular  technical  specification, 
certificates  from  equivalent  other  recognised  bodies  shall  also  be  accepted  by  the 
contracting authorities. 

Contracting  authorities  or  contracting  entities  shall  also  accept  other  appropriate 
means of proof such as a technical dossier of the manufacturer where the economic 
operator  concerned  has  no  access  to  the  certificates  or  test  rapports  referred  to  in 
paragraph 1, or no possibility of obtaining them within the relevant time limits. 

Recognised  bodies,  within  the  meaning  of  this  Article,  are  test  and  calibration 
laboratories  and  any  certification  and  inspection  bodies  accredited  in  accordance 
with Regulation (EC) No 765/2008 of the European Parliament and of the Council29. 

Member  States  shall  make  available  to  other  Member  States,  upon  request,  any 
information  related  to  the  evidence  and  documents  produced  to  prove  compliance 
with  the  technical  requirements  referred  to  in  Article  32  and  this  Article.  The 
competent  authorities  of  the  Member  State  of  establishment  shall  provide  this 
information in accordance with provisions on governance as referred to in Article 88 
of (Directive replacing Directive 2004/18/EC). 

SECTION II 
CHOICE OF PARTICIPANTS AND AWARD OF CONCESSIONS  

1. 

2. 

3. 

4. 

Article 34 
General principles 

Concessions shall be awarded on the basis of the criteria set out by the contracting authority 
or  contracting  entity  in  accordance  with  Article  39  provided  that  the  following  cumulative 
conditions are fulfilled: 

29 

OJ L 218, 13.8.2008, p. 30. 

EN 

51 

   EN 

 
                                                 
(a) 

the tender complies with the requirements, conditions and criteria set out 
in the concession notice or in the invitation to confirm interest and in the 
concession award documents;  

(b) 

the tender comes from a tenderer who  

(i) 

is  not  excluded  from  participating  in  the  award  procedure  in 
accordance with paragraphs 4 to 8 of Article 36 and 

(ii)  meets  the  selection  criteria  set  out  by  the  contracting  authority  or 
contracting  entity  in  accordance  with  paragraphs  1  to  3  of  Article 
36.  

Article 35 
Procedural guarantees 

1. 

2. 

3. 

4. 

5. 

Contracting authorities  and  contracting entities shall indicate in the contract notice, 
in the invitation to submit tenders or in the concession documents a description of the 
concession,  the  award  criteria  and  the  minimum  requirements  to  be  met.  This 
information must allow to identify the nature and scope of the concession, enabling 
economic  operators  to  decide  whether  they  request  to  participate  in  the  concession 
award  procedure.  The  description,  award  criteria  and  minimum  requirements  shall 
not be changed in the course of the negotiations. 

During  the  concession  award,  contracting  authorities  and  contracting  entities  shall 
ensure  the  equal  treatment  of  all  tenderers.  In  particular,  they  shall  not  provide 
information in a discriminatory manner which may give some tenderers an advantage 
over others. 

Whenever  the  contracting  authority  or  contracting  entity  limits  the  number  of 
applicants to an appropriate level, this shall be done in a transparent manner and on 
the  basis  of  objective  criteria  which  are  available  to  all  interested  economic 
operators.  

The rules on the organisation of the concession award procedure, including rules on 
communication, on the stages of the procedure and on timing, shall be established in 
advance and communicated to all participants  

Where  the  concession  award  involves  negotiation,  contracting  authorities  or 
contracting entities shall comply with the following rules: 

(a) where the negotiation takes place after the submission of tenders they shall 
negotiate with tenderers the tenders submitted by them in order to adapt them 
to the criteria and requirements indicated in accordance with paragraph 1. 

(b)  they  shall  not  reveal  to  the  other  participants  solutions  proposed  or  other 
confidential  information  communicated  by  a  candidate  participating  in  the 
negotiations without its agreement. This agreement shall not take the form of a 
intended 
general  waiver  but  must  be  given  with  reference 
communication of specific solutions or other confidential information; 

the 

to 

EN 

52 

   EN 

 
(c) they may conduct the negotiation in successive stages in order to reduce the 
number  of  tenders  to  be  negotiated  by  applying  the  award  criteria  in  the 
contract  notice,  in  the  invitation  to  submit  tenders  or  in  the  concession 
documents.  In  the  contract  notice,  the  invitation  to  submit  tenders  or  the 
concession  documents,  the  contracting  authority  shall  indicate  whether  it  has 
had recourse to this option. 

(d)  they  shall  assess  the  tenders  as  negotiated  on  the  basis  of  the  initially 
indicated award criteria; 

(e) they shall  establish a written record of formal deliberations and any other 
steps and events relevant for the concession award procedure. In particular, it 
shall ensure, by all appropriate means, the traceability of the negotiations. 

Contracting authorities and contracting entities shall as soon as possible inform each 
candidate  and  tenderer  of  decisions  reached  concerning  the  award  of  a  concession 
including  the  grounds  for  any  decision  not  to  award  a  contract  for  which  there  has 
been publication of a concession notice or to recommence the procedure.  

On  request  from  the  party  concerned,  the  contracting  authority  shall  as  quickly  as 
possible, and in any case within 15 days from receipt of a written request, inform: 

(a) 

any unsuccessful candidates of the reasons for the rejection of their application, 

(b) 

any  unsuccessful  tenderers  of  the  reasons  for  the  rejection  of  their  tender, 
including, for the cases referred to in Article 32 (5) and (6), the reasons for its 
decision of non-equivalence or its decision that the works, supplies or services 
do not meet the performance or functional requirements, 

(c) 

any  tenderers  that  have  made  an  admissible  tender  of  the  characteristics  and 
relative advantages of the tender selected as well as the name of the successful 
tenderer or the parties to the framework agreement, 

(d) 

any tenderers that have made an admissible tender of the conduct and progress 
of negotiations and dialogue with tenderers. 

However, contracting authorities may decide to withhold certain information referred 
to in paragraph 6, regarding the contract where the release of such information would 
impede law enforcement, would otherwise be contrary to the public interest, would 
prejudice the legitimate commercial interests of economic operators, whether public 
or private, or might prejudice fair competition between them.  

6. 

7. 

8. 

Article 36 
Selection of and qualitative assessment of candidates  

1. 

Contracting  authorities  shall  specify,  in  the  concession  notice  the  conditions  for 
participation relating to: 

(a) 

suitability to pursue the professional activity; 

(b) 

economic and financial standing; 

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(c) 

technical and professional ability. 

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

Contracting authorities and contracting entities shall also indicate in the concession 
notice the reference or references to be submitted as proof of the economic operator's 
capacities.  The  requirements  in  respect  of  those  references  shall  be  non-
discriminatory and proportionate to the subject-matter of the concession. 

With  regard  to  the  criteria  referred  to  in  paragraph  1,  an  economic  operator  may, 
where  appropriate  and  for  a  particular  concession,  rely  on  the  capacities  of  other 
entities,  regardless  of  the  legal  nature  of  its  links  with  them.  It  shall,  in  that  case, 
prove  to  the  contracting  authority  or  the  contracting  entity  that  it  will  have  at  its 
disposal,  throughout  the  period  of  the  concession,  the  necessary  resources,  for 
example, by producing an undertaking by those entities to that effect. With regard to 
economic and financial standing, contracting authorities and contracting entities may 
require  that  the  economic  operator  and  those  entities  are  jointly  liable  for  the 
execution of the contract. 

Under the same conditions, a group of economic operators as referred to in Article 22 
may rely on the capacities of participants in the group or of other entities. 

Member  States  shall  adopt  rules  combating  favouritism,  corruption  and  preventing 
conflicts of interest, aimed at ensuring the transparency of the award procedure and 
the equal treatment of all tenderers.  

With regard to conflicts of interest the measures adopted shall not go beyond what is 
strictly  necessary  to  prevent  or  eliminate  the  conflict  identified.  In  particular,  they 
shall  allow  for  the  exclusion  of  a  tenderer  or  candidate  from  the  procedure  only 
where the conflict of interests cannot be effectively remedied by other means.  

Any  candidate  or  tenderer  that  has  been  the  subject  of  a  conviction  by  a  final 
judgment for one of the reasons listed below shall be excluded from participation in a 
concession: 

(a) 

(b) 

participation  in  a  criminal  organisation,  as  defined  in  Article  2(1)  of 
Council Framework Decision 2008/841/JHA30;  

corruption, as defined in Article 3 of the Convention on the fight against   
corruption  involving  officials  of  the  European  Communities  or  officials 
of  Member  States  of  the  European  Union    and  Article  2  of  Council 
Framework Decision 2003/568/JHA31 as well as corruption as defined in 
the national law of the contracting authority or the economic operator; 

2. 

3. 

4. 

5. 

30 
31 

OJ L 300, 11.11.2008, p. 42. 
OJ L 192, 31.7.2003, p. 54. 

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(c) 

(d) 

fraud within the meaning of Article 1 of the Convention on the protection 
of the financial interests of the European Communities32; 

terrorist  offences  or  offences  linked  to  terrorist  activities,  as  defined  in 
Articles 1 and 3 of Framework Decision 2002/475/JHA33 respectively, or 
inciting,  aiding  or  abetting  or  attempting  to  commit  an  offence,  as 
referred to in Article 4 of that Framework Decision;  

(e)  money  laundering,  as  defined  in  Article  1  of  Council  Directive 

91/308/EEC34. 

The obligation to exclude a candidate or a tenderer from participation in a concession 
shall  also  apply  where  the  conviction  by  final  judgment  has  condemned  company 
directors  or  any  other  any  person  having  powers  of  representation,  decision  or 
control in respect of the candidate or tenderer. 

6. 

7. 

Any economic operator shall be excluded from participation in  a concession where 
the contracting authority or contracting entity is aware of a decision having the force 
of res judicata establishing that it has not fulfilled obligations relating to the payment 
of taxes or social security contributions in accordance with the legal provisions of the 
country  in  which  it  is  established  or  with  those  of  the  Member  State  of  the 
contracting authority or entity. 

Member  States  may  provide  that  contracting  authorities  or  contracting  entities 
exclude from participation in a concession award any economic operator if one of the 
following conditions is fulfilled: 

(a)  where it is aware of any other serious violation of provisions of European 
Union  or  of  national  law  aimed  at  the  protection  of  public  interests 
compatible with the Treaty; 

(b)  where the economic operator is the subject of insolvency or winding-up 
proceedings, where its assets are being administered by a liquidator or by 
the court, where it has entered into an arrangement with creditors, where 
it  has  suspended  business  activities  or  is  in  any  analogous  situation 
arising from a similar procedure under national laws and regulations; 

(c)  where  the  economic  operator  has  shown  significant  or  persistent 
deficiencies  in  the  performance  of  any  substantive  requirement  under  a 
prior  concession  or  concessions  of  a  similar  nature  with  the  same 
contracting authority or contracting entity.  

In  order  to  apply  the  ground  for  exclusion  referred  to  in  point  (c)  of  the  first 
subparagraph, contracting authorities and contracting entities shall provide a method 
for  the  assessment  of  contractual  performance  that  is  based  on  objective  and 
measurable criteria and applied in a systematic, consistent and transparent way. Any 
performance  assessment  has  to  be  communicated  to  the  economic  operator  in 

32 
33 
34 

OJ C 316, 27.11.1995, p. 48. 
OJ L 164, 22.6.2002, p. 3. 
OJ L 166, 28.6.1991, p. 77. 

EN 

55 

   EN 

 
                                                 
8. 

9. 

1. 

2. 

1. 

2. 

1. 

question, which must be given the opportunity to object to the findings and to obtain 
judicial protection. 

Any candidate or tenderer that is in one of the situations referred to in paragraphs 5 
to  7  may  provide  the  contracting  authority  or  contracting  entity  with  evidence 
demonstrating  its  reliability  despite  the  existence  of  the  relevant  ground  for 
exclusion. 

Member States shall specify the implementing conditions for this article. They shall 
make available to other Member States, upon request, any information related to the 
exclusion  grounds  listed  in  this  Article.  The  competent  authorities  of  the  Member 
State  of  establishment  shall  provide  this  information  in  accordance  with  the 
provisions of Article 88 of Directive [replacing Directive 2004/18/EC]. 

Article 37  
Setting time limits  

When fixing the time limits for the submission of applications for the concession and 
submission  of  tenders,  contracting  authorities  or  contracting  entities  shall  take 
account  in  particular  of  the  complexity  of  the  concession  and  the  time  required  for 
drawing up tenders, without prejudice to the minimum time limits set out in Article 
37. 

Where applications or tenders can be made only after a visit to the site or after on-
the-spot  inspection  of  the  documents  supporting  the  concession  award  documents, 
the  time  limits  for  the  submission  of  applications  for  the  concession  shall  be 
extended  so  that  all  economic  operators  concerned  may  be  aware  of  all  the 
information needed to produce applications or tenders. 

Article 38 
Time limits for submission of applications for the concession  

Where contracting authorities and contracting entities resort to a concession, the time 
limit for the submission of applications for the concession shall be not less than 52 
days from the date on which the concession notice was sent.  

The  time  limit  for  receipt  of  tenders  may  be  reduced  by  five  days  where  the 
contracting  entity  accepts  that  tenders  may  be  submitted  by  electronic  means  in 
conformity with Article 25.  

Article 39 
Concession award criteria 

Concessions  shall  be  awarded  on  the  basis  of  objective  criteria  which  ensure 
compliance  with  the  principles  of  transparency,  non-discrimination  and  equal 
treatment  and  which  ensure  that  tenders  are  assessed  in  conditions  of  effective 
competition permitting to identify an overall economic advantage for the contracting 
authority or the contracting entity.  

EN 

56 

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2. 

3. 

4. 

The award criteria shall be linked to the subject matter of the concession, and shall 
not  confer  an  unrestricted  freedom  of  choice  on  the  contracting  authority  or  the 
contracting entity. 

Those  criteria  shall  ensure  effective  competition  and  shall  be  accompanied  by 
requirements which allow the information provided by the tenderers to be effectively 
verified.  Contracting  authorities  and  contracting  entities  shall  verify  effectively  on 
the basis of the information and proof provided by the tenderers, whether the tenders 
meet the award criteria. 

The  contracting  authority  or  the  contracting  entity  shall  indicate  in  the  concession 
notice or documents the relative weighting which it gives to each of the criteria set 
out in paragraph 1 or list those criteria in descending order of importance. 

Member States may provide that contracting authorities and contracting entites shall 
base  the  award  of  concessions  on  the  criterion  of  the  most  economically 
advantageous tender, in compliance with paragraph 2. Those criteria may include, in 
addition to price or costs, any of the following criteria 

(a) 

(b) 

(c) 

(d) 

quality, including technical merit, aesthetic and functional characteristics, 
accessibility,  design  for  all  users,  environmental  characteristics  and 
innovative character. 

for  service  concessions  and  concessions  involving  the  design  of  works, 
the  organisation,  qualification  and  experience  of  the  staff  assigned  to 
performing  the  concession  in  question  may  be  taken  into  consideration, 
with  the  consequence  that,  following  the  award  of  the  concession,  such 
staff may only be replaced with the consent of the contracting authority 
or  the  contracting  entity,  which  must  verify  that  replacements  ensure 
equivalent organisation and quality; 

after-sales  service  and  technical  assistance,  delivery  date  and  delivery 
period or period of completion; 

the  specific  process  of  production  or  provision  of  the  requested  works, 
supplies or services or of any other stage of its life cycle as referred to in 
point  14  of  paragraph  1    of  Article  2,  to  the  extent  that  those  criteria 
concern factors directly involved in these processes and characterise the 
specific  process  of  production  or  provision  of  the  requested  works, 
supplies or services.  

5. 

In the case referred to in paragraph 4, the contracting authority or entity shall specify 
in  the  contract  notice,  in  the  invitation  to  submit  a  tender,  or  in  the  concession 
documents,  the  relative  weighting  which  it  gives  to  each  of  the  criteria  chosen  to 
determine the most economically advantageous tender. 

Those  weightings  may  be  expressed  by  providing  for  a  range  with  an  appropriate 
maximum spread. 

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57 

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Where  weighting  is  not  possible  for  objective  reasons,  the  contracting  authority  or 
entity shall indicate the criteria in decreasing order of importance. 

Article 40 
Life-cycle costing 

1. 

Life-cycle costing shall to the extent relevant cover all of the following costs over the 
life  cycle  of  a  product,  service  or  works  as  defined  in  point  14  of  paragraph  1  of 
Article 2: 

(a) 

(b) 

internal costs, including costs relating to acquisition (such as production costs), 
use (such as energy consumption, maintenance costs) and end of life (such as 
collection and recycling costs)  

external  environmental  costs  directly  linked  to  the  life  cycle,  provided  their 
monetary value can be determined and verified, which may include the cost of 
emissions  of  greenhouse  gases  and  of  other  pollutant  emissions  and  other 
climate change mitigation costs. 

2. 

Where  contracting  authorities  assess  the  costs  using  a  life-cycle  costing  approach, 
they shall indicate in the concession award documents the methodology used for the 
calculation  of  the  life-cycle  costs.  The  methodology  used  must  fulfil  all  of  the 
following conditions: 

(a) 

It has been drawn up on the basis of scientific information or is based on other 
objectively verifiable and non-discriminatory criteria; 

(b) 

It has been established for repeated or continuous application; 

(c) 

It is accessible to all interested parties. 

Contracting  authorities  and  contracting  entities  shall  allow  economic  operators  to 
apply  a  different  methodology  for  establishing  the  life-cycle  costs  of  their  offer, 
provided  that  they  prove  that  this  methodology  complies  with  the  requirements  set 
out  in  points  a,  b  and  c  and  is  equivalent  to  the  methodology  indicated  by  the 
contracting authority or contracting entity. 

3. 

Whenever a common methodology for the calculation of life-cycle costs is adopted 
as  part  of  a  legislative  act  of  the  Union,  including  by  delegated  acts  pursuant  to 
sector specific legislation, it shall be applied where life-cycle costing is included in 
the award criteria referred to in Article 39 paragraph (4). 

A list of such legislative and delegated acts is set out in Annex II. The Commission 
shall be empowered to adopt delegated acts in accordance with Article 46 concerning 
the update of this list, when on the basis of the adoption of new legislation, repeal or 
modification of such legislation, such amendments prove necessary. 

EN 

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TITLE III 
Rules on performance of concessions 

1. 

2. 

1. 

2. 

Article 41 
Subcontracting 

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

Paragraph  1  shall  be  without  prejudice  to  the  question  of  the  principal  economic 
operator’s liability. 

Article 42 
Modification of concessions during their term 

A substantial modification of the provisions of a concession during its term shall be 
considered as a new award for the purposes of this Directive and shall require a new 
concession award procedure in accordance with this Directive. 

A modification of a concession during its term shall be considered  substantial within 
the  meaning  of  paragraph  1,  where  it  renders  the  concession  substantially  different 
from the one initially concluded, In any case, without prejudice to paragraph 3 and 4, 
a modification shall be considered substantial where one of the following conditions 
is met:  

(a) 

(b) 

(c) 

the modification introduces conditions which, had they been  part of  the 
initial concession award procedure, would have allowed for the selection 
of  other  applicants  than  those  initially  selected,  or  would  have  allowed 
for awarding the concession to another applicant or tenderer; 

the  modification  changes  the  economic  balance  of  the  concession  in 
favour of the concessionaire or 

the  modification  extends  the  scope  of  the  concession  considerably  to 
encompass supplies, services or works not initially covered. 

3. 

The replacement of the concessionaire shall be considered a substantial modification 
within the meaning of paragraph 1.  

However,  the  first  subparagraph  shall  not  apply  in  the  event  of  universal  or  partial 
succession into the position of the initial contractor, following corporate restructuring 
operations,  insolvency  or  on  the  basis  of  a  contractual  clause  of  another  economic 
operator that fulfils the criteria for qualitative selection initially established provided 
that this does not entail other substantial modifications to the concession and is not 
aimed at circumventing the application of this Directive. 

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4. 

5. 

6. 

Where  the  value  of  a  modification  can  be  expressed  in  monetary  terms,  the 
modification  shall  not  be  considered  to  be  substantial  within  the  meaning  of 
paragraph 1, where its value does not exceed the thresholds set out in Article 5 and 
where  it  is  below  5 %  of  the  price  of  the  initial  contract,  provided  that  the 
modification  does  not  alter  the  overall  nature  of  the  contract.  Where  several 
successive  modifications  are  made,  the  value  shall  be  assessed  on  the  basis  of  the 
cumulative value of the successive modifications.  

Concession modifications shall not be considered substantial within the meaning of 
paragraph  1,  where  they  have  been  provided  for  in  the  concession  documents  in 
clear, precise and unequivocal review clauses or options. Such clauses shall state the 
scope and nature of possible modifications or options as well as the conditions under 
which  they  may  be  used.  They  shall  not  provide  for  modifications  or  options  that 
would alter the overall nature of the concession.  

By way of derogation from paragraph 1, a substantial modification shall not require a 
new  concession  award  procedure  where  the  following  cumulative  conditions  are 
fulfilled:  

(d) 

the  need  for  modification  has  been  brought  about  by  circumstances 
which a diligent contracting authority or entity could not foresee  

(e) 

the modification  does not alter the overall nature of the concession 

(f) 

in  case  of  concessions  awarded  by  contracting  authorities  where  any 
increase  in  price  is  not  higher  than  50%  of  the  value  of  the  original 
concession.  

Contracting authorities or contracting entities shall publish in the Official Journal of 
the  European  Union  a  notice  on  such  modifications.  Such  notices  shall  contain  the 
information set out in Annex VII  and be published in accordance with the provisions 
of Article 28. 

7. 

Contracting  authorities  and  contracting  entities  shall  not  have  recourse 
modifications of the concession in the following cases: 

to 

(a)  where  the  modification  would  aim  at  remedying  deficiencies  in  the 
performance  of  the  concessionaire  or  the  consequences  thereof,  which 
can be remedied through the enforcement of contractual obligations; 

(b)  where  the  modification  would  aim  at  compensating  risks  of  price 
increases that are the result of price fluctuations that could substantially 
impact the performance of a contract and that have been hedged by the 
concessionaire.  

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Article 43 
Termination of concessions 

Member  States  shall  ensure  that  contracting  authorities  and  contracting  entities  have  the 
possibility,  under  the  conditions  determined  by  the  applicable  national  contract  law,  to 
terminate a concession during its term, where one of the following conditions is fulfilled: 

(a) 

(b) 

(c) 

the  exceptions  provided  for  in  Article  15  cease  to  apply  following  a 
private participation in the legal person awarded the contract pursuant to 
Article 15 (4);  

a  modification  of  the  concession  constitutes  a  new  award  within  the 
meaning of Article 42; 

the Court of Justice of the European Union finds, in a procedure pursuant 
to Article 258 of the Treaty, that a Member State has failed to fulfil its 
obligations under the Treaties by the fact that a contracting authority or 
entity  belonging  to  that  Member  State  has  awarded  the  concession  in 
question  without  complying  with  its  obligations  under  the  Treaties  and 
this Directive. 

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TITLE V 
AMMENDEMENTS OF DIRECTIVES 89/665/EEC AND 
92/13/EEC 

Article 44 
Amendments to Directive 89/665/EEC 

Directive 89/665/EEC shall be amended as follows: 

1. 

Article 1is amended as follows: 

(a) 

paragraph 1 is replaced by the following: 

‘1.  This  Directive  applies  to  contracts  referred  to  in  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  unless  such  contracts  are  excluded  in  accordance  with 
Articles 10 to 18 of that Directive. 

This  Directive  also  applies  to  concessions  awarded  by  contracting  authorities, 
referred  to  in  Directive  [on  the  award  of  concessions]  unless  such  concessions  are 
excluded in accordance with Articles 8, 9, 15 and 21 of that Directive. 

Contracts within the meaning of this Directive include public contracts, framework 
agreements, public works concessions, services concessions and dynamic purchasing 
systems.’ 

(b)  Article 1 first paragraph, 3 subparagraph is replaced by the following: 

‘  Member  States  shall  take  the  measures  necessary  to  ensure  that,  as  regards 
contracts  falling  within  the  scope  of  Directive  2004/18/EC  or  Directive  [on 
Concessions],  decisions  taken  by  the  contracting  authorities  may  be  reviewed 
effectively and, in particular, as rapidly as possible in accordance with the conditions 
set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have 
infringed  Community  law  in  the  field  of  public  procurement  or  national  rules 
transposing that law’. 

2. 

Article 2a(2) is amended as follows:  

(a) 

the first subparagraph is replaced by the following: 

‘A contract may not be concluded following the decision to award a contract falling 
within the scope of Directive 2004/18/EC or  Directive  [on Concessions] before the 
expiry of a period of at least 10 calendar days with effect from the day following the 
date  on  which  the  contract  award  decision  is  sent  to  the  tenderers  and  candidates 
concerned  if fax or electronic means  are used  or, if other means of communication 
are used, before the expiry of a period of either at least 15 calendar days with effect 
from the day following the date on which the contract award decision is sent to the 

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tenderers and candidates concerned or at least 10 calendar days with effect from the 
day following the date of the receipt of the contract award decision.’; 

(b) 

in the fourth subparagraph, first indent is replaced by the following: 

‘–  a  summary  of  the  relevant  reasons  as  set  out  in  Article  41(2)  of  Directive 
2004/18/EC, subject to the provisions of Article 41(3) of that Directive, or in Article 
35  (7)  of  Directive  [on  Concessions],  subject  to  the  provisions  of  Article  35  (8)  of 
that Directive and,’ 

3. 

in Article 2b, point (a) is replaced by the following: 

if  Directive 2004/18/EC  or  Directive  [on  Concessions]  does  not  require  prior 

‘(a) 
publication of a contract notice in the Official Journal of the European Union;’; 

4. 

Article 2d is amended as follows: 

(a) 

in paragraph 1, point (a) is replaced by the following: 

‘(a) 
if the contracting authority has awarded a contract without prior publication of 
a  contract  notice  in  the  Official  Journal  of  the  European  Union  without  this  being 
permissible 
[on 
Concessions]’; 

in  accordance  with  Directive  2004/18/EC  or  Directive 

(b) 

in paragraph 4, the first indent is replaced by the following: 

‘-  the  contracting  authority  considers  that  the  award  of  a  contract  without  prior 
publication  of  a  contract  notice  in  the  Official  Journal  of  the  European  Union  is 
permissible 
[on 
Concessions]’, 

in  accordance  with  Directive  2004/18/EC  or  Directive 

5. 

Article 2f (1)(a) is amended as follows:  

(a) 

the first indent is replaced by the following: 

‘ 

-  the  contracting  authority  published  a  contract  award  notice  in  accordance  with 
Articles  35(4),  36  and  37  of  Directive  2004/18/EC  or  with  Articles  26  and  27  of 
Directive  [on  Concessions],  provided  that  this  notice  includes  justification  of  the 
decision of the contracting authority to award the contract without prior publication 
of a contract notice in the Official Journal of the European Union, or’; 

(b) 

after the first indent, the following indent is inserted: 

‘-  the  contracting  authority  informed  the tenderers  and  candidates  concerned  of  the 
conclusion of the contract, provided that this information contains a summary of the 
relevant  reasons  as  set  out  in  Article  41(2)  of  Directive  2004/18/EC,  subject  to  the 
provisions of Article 41(3) of that Directive or in in Article 35 (7) of Directive [on 
Concessions], subject to the provisions of Article 35 (8) of that Directive. This option 
also applies to the cases referred to in Article 2b(c) of this Directive;’; 

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6. 

In Article 3, paragraph 1 is replaced by the following: 

‘1.  The Commission may invoke the procedure provided for in paragraphs 2 to 5 
when, prior to a contract being concluded, it considers that a serious infringement of 
Community  law  in  the  field  of  public  procurement  has  been  committed  during  a 
contract  award  procedure  falling  within  the  scope  of  Directive  2004/18/EC  or 
Directive [on Concessions].’. 

Article 45 
Amendments to Directive 92/13/EEC 

Directive 92/13/EEC shall be amended as follows: 

1. 

Article 1(1) is amended as follows:  

(a) 

the first and second subparagraph is replaced by the following: 

‘This  Directive  applies  to  contracts  referred  to  in  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  (1)  unless  such  contracts  are  excluded  in  accordance  with 
Article 5 (2), Articles 19 to 26, Articles 29 and 30 or Article 62 of that Directive. 

This Directive also applies to concessions awarded by contracting entities, referred to 
in Directive [on Concessions] unless such contracts are excluded in accordance with 
Articles 8, 10, 11, 12, 14, 15 and 21 of that Directive.’ ; 

(b) 

the third subparagraph is replaced by the following: 

‘Member States shall take the measures necessary to ensure that, as regards contracts 
falling  within  the  scope  of  Directive  2004/17/EC  or  Directive  [on  Concessions], 
decisions taken by contracting entities may be reviewed effectively and, in particular, 
as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of 
this Directive, on the grounds that such decisions have infringed Community law in 
the field of procurement or national rules transposing that law.’; 

2. 

Article 2a(2) is amended as follows:  

(a) 

the first subparagraph is replaced by the following: 

‘A contract may not be concluded following the decision to award a contract falling 
within the scope of Directive 2004/17/EC  or Directive [on Concessions] before the 
expiry of a period of at least 10 calendar days with effect from the day following the 
date  on  which  the  contract  award  decision  is  sent  to  the  tenderers  and  candidates 
concerned  if fax or electronic means  are used  or, if other means of communication 
are used, before the expiry of a period of either at least 15 calendar days with effect 
from the day following the date on which the contract award decision is sent to the 
tenderers and candidates concerned or at least 10 calendar days with effect from the 
day following the date of the receipt of the contract award decision.’; 

(b) 

in the fourth subparagraph, the first indent is replaced by the following:   

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‘—  a  summary  of  the  relevant  reasons  as  set  out  in  Article  49(2)  of  Directive 
2004/17/EC  or  in  Article  35  (7)  of  Directive  [on  Concessions],  subject  to  the 
provisions of Article 35 (8) of that Directive, and’; 

3. 

in Article 2b, point (a) is replaced by the following: 

‘(a)  if  Directive  2004/17/EC  or  Directive  [on  Concessions]  does  not  require  prior 
publication of a notice in the Official Journal of the European Union; ‘ 

4. 

Article 2c is replaced by the following:  

‘Article 2c 

Where  a  Member  State  provides  that  any  application  for  review  of  a  contracting 
entity's decision taken in the context of, or in relation to, a contract award procedure 
falling within the scope of Directive 2004/17/EC or Directive [on Concessions] must 
be  made  before  the  expiry  of  a  specified  period,  this  period  shall  be  at  least  10 
calendar days with effect from the day following the date on which the contracting 
entity's  decision  is  sent  to  the  tenderer  or  candidate  if  fax  or  electronic  means  are 
used or, if other means of communication are used, this period shall be either at least 
15  calendar  days  with  effect  from  the  day  following  the  date  on  which  the 
contracting entity's decision is sent to the tenderer or candidate or at least 10 calendar 
days with effect from the day following the date of receipt of the contracting entity's 
decision. The communication of the contracting entity's decision to each tenderer or 
candidate shall be accompanied by a summary of the relevant reasons. In the case of 
an application for a review concerning decisions referred to in Article 2(1)(b) of this 
Directive  that  are  not  subject  to  a  specific  notification,  the  time  period  shall  be  at 
least 10 calendar days from the date of the publication of the decision concerned.’ 

5. 

Article 2d is amended as follows:  

(a) 

paragraph 1, point (a) is replaced by the following:   

‘(a) 
if the contracting entity has awarded a contract without prior publication of a 
notice in the Official Journal of the European Union without this being permissible 
in accordance with Directive 2004/17/EC or Directive [on Concessions]’; 

(b) 

in paragraph 4, the first indent shall be replaced by the following:   

‘—  the  contracting  entity  considers  that  the  award  of  a  contract  without  prior 
publication of a notice in the Official Journal of the European Union is permissible 
in accordance with Directive 2004/17/EC or Directive [on Concessions],’; 

6. 

In Article 2f(1), point (a) is replaced by the following: 

‘—  the  contracting  entity  published  a  contract  award  notice  in  accordance  with 
Articles 43 and 44 of Directive 2004/17/EC or with Articles 26 and 27 of Directive 
[on Concessions], provided that this notice includes the justification of the decision 
of the contracting entity to award the contract without prior publication of a notice in 
the Official Journal of the European Union, or 

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—  the  contracting  entity  informed  the  tenderers  and  candidates  concerned  of  the 
conclusion of the contract, provided that this information contains a summary of the 
relevant reasons as set out in Article 49(2) of Directive 2004/17/EC or in Article 35 
(7) of Directive [on Concessions], subject to the provisions of Article 35 (8) of that 
Directive.  This  option  also  applies  to  the  cases  referred  to  in  Article  2b(c)  of  this 
Directive;’; 

7. 

in Article 8, paragraph 1 is replaced by the following:   

‘1.  The Commission may invoke the procedure provided for in paragraphs 2 to 5 
when, prior to a contract being concluded, it considers that a serious infringement of 
Community  law  in  the  field  of  procurement  has  been  committed  during  a  contract 
award  procedure  falling  within  the  scope  of  Directive  2004/17/EC  or  Directive  [on 
Concessions], or in relation to Article 27(a) of Directive 2004/17/EC in the case of 
contracting entities to which that provision applies’. 

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TITLE VI 
DELEGATED POWERS, IMPLEMENTING POWERS 
AND FINAL PROVISIONS 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

Article 46 
Exercise of the delegation of powers 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article. 

The delegation of power referred to in Articles  4 (3), 21 (3), 23 (2), 25 (3), 40 (3)  
and 52 (2) shall be conferred on the Commission for an indeterminate period of time 
from the [date of entry into force of the present Directive]. 

The  delegation  of  power  referred  to  in  Articles  4  (3),  21  (3),  23  (2),  25  (3),  40  (3)  
and  52  (2),    may  be  revoked  at  any  time  by  the  European  Parliament  or  by  the 
Council.  A  revocation  decision  shall  put  an  end  to  the  delegation  of  the  power 
specified in that decision. It shall take effect the day following the publication of the 
decision  in  the  Official  Journal  of  the  European  Union  or  at  a  later  date  specified 
therein. It shall not affect the validity of any delegated acts already in force. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

A delegated act adopted pursuant to this Article shall enter into force only where no 
objection  has  been  expressed  either  by  the  European  Parliament  or  by  the  Council 
within a period of two months of notification of the act to the European Parliament 
and the Council or if, before the expiry of that period, the European Parliament and 
the  Council  have  both  informed  the  Commission  that  they  will  not  object.  That 
period shall be extended by two months at the initiative of the European Parliament 
or the Council. 

Article 47 
Urgency procedure 

Delegated  acts  adopted  under  this  Article  shall  enter  into  force  without  delay  and 
shall apply as long as no objection is expressed in accordance with paragraph 2. The 
notification  of  a  delegated  act  to  the  European  Parliament  and  to  the  Council  shall 
state the reasons for the use of the urgency procedure. 

Either  the  European  Parliament  or  the  Council  may  object  to  a  delegated  act  in 
accordance  with  the  procedure  referred  to  in  Article  46(5).  In  such  a  case,  the 
Commission  shall  repeal  the  act  without  delay  following  the  notification  of  the 
decision to object by the European Parliament or the Council. 

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1. 

2. 

1. 

Article 48 
Committee Procedure 

The Commission shall be assisted by the Advisory Committee for Public Contracts 
established by Council Decision 71/306/EEC35. That committee shall be a committee 
within the meaning of Regulation (EU) No 182/2011. 

Where reference is made to this Article, Article 4 of Regulation (EU) No 182/2011 
shall apply. 

Article 49 
Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  30  June  2014  at  the  latest. 
They shall forthwith communicate to the Commission the text of those provisions. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 50 
Transitional provisions   

References to paragraph 3(a) and (b) of Article 1 of Directive 2004/17/EC and   paragraphs 3 
and  4  of  Article  1  and  Title  III  of  Directive  2004/18/EC  Directive  shall  be  construed  as 
references to this Directive. 

Article 51 
Review 

The Commission shall review the economic effects on the Internal Market resulting from the 
application  of  the  thresholds  set  in  Article  5  and  report  thereon  to  the  European  Parliament 
and the Council by 30 June 2016.  

Article 52 
Entry into force 

This Directive shall enter into force on twentieth day following that of its publication in the 
Official Journal of the European Union. 

35 

OJ L 185, 16.8.1971, p. 15. 

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Article 53 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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ANNEX I 
LIST OF THE ACTIVITIES REFERRED TO IN POINT (5) OF THE FIRST 
PARAGRAPH OF ARTICLE 236 

NACE Rev. 1 (1) 

SECTION F 

CONSTRUCTION 

Division  Group  Class Subject 

Notes 

CPV 
code 

45 

Construction This division includes: 

45000000

45.1 

Site 
preparation 

45.11 Demolition 
and 
wrecking  of 
buildings; 
earth moving

construction  of  new  buildings  and  works, 
restoring and common repairs. 

45100000

This class includes: 

45110000

— demolition  of  buildings 
structures, 

and  other 

— clearing of building sites, 

landfill, 
— earth  moving: 
levelling  and  grading  of  construction  sites, 
trench digging, rock removal, blasting, etc. 

excavation, 

— site preparation for mining: 

—  

other 
removal 
— overburden 
development  and  preparation  of  mineral 
properties and sites. 

and 

This class also includes: 

— building site drainage. 

— drainage of agricultural or forestry land. 

45.12 Test  drilling 

This class includes: 

45120000

and boring 

— test drilling, test boring and core sampling 

36 

In the event of any difference of interpretation between the CPV and the NACE, the CPV nomenclature 
will apply. 

EN 

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for  construction,  geophysical,  geological  or 
similar purposes. 

This class excludes: 

— drilling of production oil or gas wells, see 
11.20. 

— water well drilling, see 45.25, 

— shaft sinking, see 45.25, 

— oil and gas field exploration, geophysical, 
geological and seismic surveying, see 74.20. 

45.2 

Building  of 
complete 
constructions 
or 
parts 
thereof;  civil 
engineering 

45.21 General 

This class includes: 

construction 
of  buildings 
and 
civil 
engineering 
works 

— construction  of  all  types  of  buildings 
construction 
engineering 
constructions, 

civil 

of 

— bridges, 
highways, viaducts, tunnels and subways, 

those  for  elevated 

including 

— long-distance  pipelines,  communication 
and power lines, 

— urban  pipelines,  urban  communication 
and power lines, 

— ancillary urban works, 

— assembly  and  erection  of  prefabricated 
constructions on the site. 

This class excludes: 

— service activities incidental to oil and gas 
extraction, see 11.20, 

of 

— erection 
prefabricated 
constructions  from  self-manufactured  parts 
not of concrete, see divisions 20, 26 and 28, 

complete 

45200000

45210000

Except: 

-
45213316

45220000

45231000

45232000

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— construction  work,  other  than  buildings, 
for stadiums, swimming pools, gymnasiums, 
tennis  courts,  golf  courses  and  other  sports 
installations, see 45.23, 

— building installation, see 45.3, 

— building completion, see 45.4, 

— architectural  and  engineering  activities, 
see 74.20, 

— project  management  for  construction,  see 
74.20. 

45.22 Erection  of 

This class includes: 

45261000

roof 
covering  and 
frames 

45.23 Construction 
of  highways, 
roads, 
airfields  and 
sport 
facilities 

— erection of roofs, 

— roof covering, 

— waterproofing. 

This class includes: 

— construction  of  highways,  streets,  roads, 
other vehicular and pedestrian ways, 

— construction of railways, 

— construction of airfield runways, 

— construction  work,  other  than  buildings, 
for stadiums, swimming pools, gymnasiums, 
tennis  courts,  golf  courses  and  other  sports 
installations, 

45212212 
and 
DA03 

45230000

except: 

-
45231000

-
45232000

— painting of markings on road surfaces and 
car parks. 

-
45234115

This class excludes: 

— preliminary earth moving, see 45.11. 

45.24 Construction 
water 

of 
projects 

This class includes 

— construction of: 

—  

45240000

— waterways,  harbour  and  river  works, 

EN 

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45250000

45262000

pleasure ports (marinas), locks, etc., 

— dams and dykes, 

— dredging, 

— subsurface work. 

45.25 Other 

This class includes: 

construction 
work 
involving 
special 
trades 

— construction  activities  specialising  in  one 
aspect  common 
to  different  kinds  of 
structures,  requiring  specialised  skill  or 
equipment, 

— construction  of  foundations, 
pile driving, 

including 

— water well drilling and construction, shaft 
sinking, 

— erection  of  non-self-manufactured  steel 
elements, 

— steel bending, 

— bricklaying and stone setting, 

— scaffolds  and  work  platform  erecting  and 
dismantling, including  renting  of  scaffolds 
and work platforms, 

— erection of chimneys and industrial ovens. 

This class excludes: 

— renting  of  scaffolds  without  erection  and 
dismantling, see 71.32 

45.3 

Building 
installation 

45.31 Installation 

This class includes: 

of  electrical 
wiring 
and 
fittings 

installation in buildings or other construction 
projects of: 

— electrical wiring and fittings, 

— telecommunications systems, 

45300000

45213316

45310000

Except: 

-
45316000

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— electrical heating systems, 

— residential antennas and aerials, 

— fire alarms, 

— burglar alarm systems, 

— lifts and escalators, 

— lightning conductors, etc. 

This class includes: 

45320000

— installation 
other 
construction  projects  of  thermal,  sound  or 
vibration insulation. 

buildings 

or 

in 

45.32 Insulation 
work 
activities 

This class excludes: 

— waterproofing, see 45.22. 

45.33 Plumbing 

This class includes: 

45330000

— installation 
construction projects of: 

in 

buildings 

or 

other 

—  

— plumbing and sanitary equipment, 

— gas fittings, 

— heating,  ventilation,  refrigeration  or  air-
conditioning equipment and ducts, 

— sprinkler systems. 

This class excludes: 

— installation  of  electrical  heating  systems, 
see 45.31. 

45.34 Other 

This class includes: 

building 
installation 

— installation  of  illumination  and  signalling 
systems  for  roads,  railways,  airports  and 
harbours, 

45234115

45316000

45340000

other 
— installation 
construction  projects  of  fittings  and  fixtures 

buildings 

or 

in 

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n.e.c. 

45.4 

Building 
completion 

45400000

45.41 Plastering 

This class includes: 

45410000

in 

buildings 

— application 
other 
construction  projects  of  interior  and  exterior 
plaster  or  stucco,  including  related  lathing 
materials. 

or 

45.42 Joinery 

This class includes: 

45420000

installation 

— installation  of  not 
self-manufactured 
doors,  windows,  door  and  window  frames, 
fitted  kitchens,  staircases,  shop  fittings  and 
the like, of wood or other materials, 

— interior  completion  such  as  ceilings, 
wooden  wall  coverings,  movable  partitions, 
etc. 

This class excludes: 

— laying  of  parquet  and  other  wood  floor 
coverings, see 45.43. 

and 

This class includes: 

45430000

— laying, 
buildings or other construction projects of: 

tiling,  hanging  or 

fitting 

in 

45.43 Floor 
wall 
covering 

—  

— ceramic,  concrete  or  cut  stone  wall  or 
floor tiles, 

— parquet  and  other  wood  floor  coverings 
carpets and linoleum floor coverings, 

— including of rubber or plastic, 

— terrazzo,  marble,  granite  or  slate  floor  or 
wall coverings, 

— wallpaper. 

45.44 Painting  and 
glazing 

This class includes: 

45440000

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— interior and exterior painting of buildings, 

— painting of civil engineering structures, 

— installation of glass, mirrors, etc. 

This class excludes: 

— installation of windows, see 45.42, 

45.45 Other 

This class includes: 

building 
completion 

— installation of private swimming pools, 

45212212 
and 
DA04 

— steam  cleaning,  sand  blasting  and  similar 
activities for building exteriors, 

45450000

— other  building  completion  and  finishing 
work n.e.c. 

This class excludes: 

— interior  cleaning  of  buildings  and  other 
structures, see 74.70. 

45500000

This class excludes: 

45500000

— renting  of  construction  or  demolition 
machinery and equipment without operators, 
see 71.32. 

45.5 

Renting 
of 
construction 
or 
demolition 
equipment 
with 
operator 

45.50 Renting 

of 
construction 
or 
demolition 
equipment 
with 
operator 

(1) Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of 
economic  activities  in  the  European  Community  (OJ  L  293,  24.10.1990,  p. 1),  regulation  as 
last amended by Commission Regulation (EEC) No 761/93 (OJ L 83, 3.4.1993, p. 1). 

ANNEX II 
LIST OF EU LEGISLATION REFERRED TO IN ARTICLE 40 (3) 

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1. 

Directive 2009/33/EC37. 

ANNEX III 
ACTIVITIES EXERCISED BY CONTRACTING ENTITIES AS REFERRED TO IN 
ART. 4 

The provisions of this Directive governing concessions awarded by contracting entities shall 
apply to the following activities: 

1. 

As far as gas and heat are concerned:  

(a) 

the  provision or operation of fixed  networks intended to  provide a  service to 
the public in connection with the production, transport or distribution of gas or 
heat;  

(b) 

the supply of gas or heat to such networks. 

The  supply  of  gas  or  heat  to  networks  which  provide  a  service  to  the  public  by  a 
contracting entity referred to in paragraph 1 subparagraph 2 and subparagraph 3 of 
Article 4 shall not be considered a relevant activity within the meaning of paragraph 
1 where all of the following conditions are met: 

(c) 

(d) 

the  production  of  gas  or  heat  by  the  entity  concerned  is  the  unavoidable 
consequence  of  carrying  out  an  activity  other  than  those  referred  to  in  this 
paragraph or in paragraphs 2 to 4 of this Annex;  

the supply to the public network is aimed only at the economic exploitation of 
such production and amounts to not more than 20 % of the entity's turnover on 
the  basis  of  the  average  for  the  preceding  three  years,  including  the  current 
year. 

2. 

As far as electricity is concerned: 

(a) 

the  provision or operation  of fixed networks intended to  provide a  service to 
the  public  in  connection  with  the  production,  transport  or  distribution  of 
electricity;  

(b) 

the supply of electricity to such networks. 

For  the  purposes  of  this  Directive,  supply  of  electricity  includes  generation 
(production) and wholesale of electricity. 

The  supply  of  electricity  to  networks  which  provide  a  service  to  the  public  by  a 
contracting entity referred to in paragraph 1 subparagraph 2 and subparagraph 3 of 
Article 4 shall not be considered a relevant activity within the meaning of paragraph 
1 where all of the following conditions are met: 

37 

OJ L 120, 15.5.2009, p. 5. 

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(a) 

(b) 

the  production  of  electricity  by  the  entity  concerned  takes  place  because  its 
consumption is necessary for carrying out an activity other than those referred 
to in this paragraph or in paragraphs 1, 3 and 4 of this Annex 

supply  to  the  public  network  depends  only  on  the  entity's  own  consumption 
and  has  not  exceeded  30%  of  the  entity's  total  production  of  energy,  on  the 
basis of the average for the preceding three years, including the current year. 

3. 

As far as water is concerned:  

(a) 

the  provision or operation  of fixed networks intended to  provide a  service to 
the  public  in  connection  with  the  production,  transport  or  distribution  of 
drinking water;  

(b) 

the supply of drinking water to such networks. 

This  Directive  shall  also  apply  to  concessions  awarded  or  organised  by  entities 
which pursue an activity referred to above and which are connected with one of the 
following: 

(a)  hydraulic  engineering  projects,  irrigation  or  land  drainage,  provided  that  the 
volume of water to be used for the supply of drinking water represents more 
than  20  %  of  the  total  volume  of  water  made  available  by  such  projects  or 
irrigation or drainage installations, or 

(b) 

the disposal or treatment of sewage. 

The supply of drinking water to networks which provide a service to the public by a 
contracting  entity  referred  to  in  paragraph  1  subparagraph  1  and  paragraph  2  of 
Article  4  shall  not  be  considered  a  relevant  activity  within  the  meaning  of 
subparagraph 1 where all of the following conditions are met: 

(a) 

(b) 

the production of drinking water by the entity concerned takes place because 
its  consumption  is  necessary  for  carrying  out  an  activity  other  than  those 
referred to in paragraphs 1 to 4 of this Annex;  

the supply to the public network depends only on the entity's own consumption 
and has not exceeded 30 % of the entity's total production of drinking water, 
on the basis of the average for the preceding three years, including the current 
year. 

4. 

Activities  relating  to  the  provision  or  operation  of  networks  providing  a  service  to 
the public in the field of transport by railway, automated systems, tramway, trolley 
bus, bus or cable. 

As  regards  transport  services,  a  network  shall  be  considered  to  exist  where  the 
service is provided under operating conditions laid down by a competent authority of 
a  Member  State,  such  as  conditions  on  the  routes  to  be  served,  the  capacity  to  be 
made available or the frequency of the service. 

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5. 

Activities  relating  to  the  exploitation  of  a  geographical  area  for  the  purpose  of  the 
provision  of  airports  and  maritime  or  inland  ports  or  other  terminal  facilities  to 
carriers by air, sea or inland waterway. 

6. 

Activities relating to the provision of : 

(a)  postal services; on the conditions set out in point (c),  

(b)  other  services  than  postal  services,  on  condition  that  such  services  are 
provided by an entity which also provides postal services within the meaning 
of  point  (b)  of  subparagraph  2  and  provided  that  the  conditions  set  out  in 
Article  27(1)  of  Directive  [replacing  2004/17/EC]  are  not  satisfied  in  respect 
of the services falling within point (b) of subparagraph 2. 

For the purpose of this Directive and without prejudice to Directive 97/67/EC: 

"postal item": means an item addressed in the final form in which it is to 
be  carried,  irrespective  of  weight.  In  addition  to  items  of 
correspondence,  such  items  also  include  for  instance  books, 
catalogues,  newspapers,  periodicals 
and  postal  packages 
containing  merchandise  with  or  without  commercial  value, 
irrespective of weight; 

(a) 

"postal services":  means services consisting of the clearance, sorting, routing 
and delivery of postal items. This shall include both services falling within as 
well  as  services  falling  outside  the  scope  of  the  universal  service  set  up  in 
conformity with Directive 97/67/EC;  

(b) 

"other services than postal services": means services provided in the following 
areas: 

(1)  mail  service  management  services  (services  both  preceding  and 
including  "mailroom  management 

to  despatch, 

subsequent 
services"), 

(2) 

(3) 

(4) 

added-value services linked to and provided entirely by electronic 
means  (including  the  secure  transmission  of  coded  documents  by 
electronic  means,  address  management  services  and  transmission 
of registered electronic mail), 

services concerning postal items not included in point (a), such as 
direct mail bearing no address, 

financial  services,  as  defined  in  the  CPV  under  the  reference 
numbers  from  66100000-1  to  66720000-3  and  in  Article  8  (5)(d) 
and  including  in  particular  postal  money  orders  and  postal  giro 
transfers, 

(5)  philatelic services,  

(6) 

logistics  services  (services  combining  physical  delivery  and/or 
warehousing with other non-postal functions), 

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7. 

Activities relating to the exploitation of a geographical area for the purpose of: 

(a) 

extracting oil or gas,  

(b) 

exploring for or extracting coal or other solid fuels. 

ANNEX IV 
INFORMATION TO BE INCLUDED IN CONCESSION NOTICES  

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  entity  and,  where  different,  of  the  service  from  which 
additional information may be obtained.  

Type of contracting authority or entity and main activity exercised. 

If  the  applications  are  to  contain  tenders,  email  or  internet  address  at  which  the 
specifications  and  any  supporting  documents  will  be  available  for  unrestricted  and 
full direct access, free of charge. 

Description of the procurement: nature and extent of works, nature and quantity or 
value of supplies, nature and extent of services, Where the concession is divided into 
lots, this information shall be provided for each lot. Where appropriate, description 
of any options. 

CPV Nomenclature reference No(s). Where the concession is divided into lots, this 
information shall be provided for each lot. 

NUTS code for the main location of works in case of works concessions or NUTS 
code for the main place of performance service concessions; where the concession is 
divided into lots, this information shall be provided for each lot. 

Estimated total value of concession(s); where the concession is divided into lots, this 
information  shall  be  provided  for  each  lot,  together  with  detailed  method  of 
calculation of the estimated total value of the concession, in accordance with Art. 6  

Where  the  concession  is  to  be  subdivided  into  lots,  indication  of  the  possibility  of 
tendering  for  one,  for  several  or  for  all  of  the  lots;  indication  of  any  possible 
limitation of the number of lots that may be awarded to any one tenderer.  

Time-frame  for  delivery  or  provision  of  supplies,  works  or  services  and,  as  far  as 
possible, duration of the concession. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

Conditions for participation, including: 

(a)  where  appropriate,  indication  whether  the  concession  is  restricted  to 
sheltered  workshops,  or  whether  its  execution  is  restricted  to  the 
framework of protected job programmes, 

(b)  where  appropriate,  indication  whether  the  provision  of  the  service  is 
reserved  by  law,  regulation  or  administrative  provision  to  a  particular 

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profession;  reference  to  the  relevant  law,  regulation  or  administrative 
provision, 

(c) 

a  list  and  brief  description  of  selection  criteria;  minimum  level(s)  of 
standards  possibly  required;  indication  of  required  information  (self-
declarations, documentation). 

11. 

Description of award procedure used, if the procedure is to be conducted in stages, 
number  of  candidates  to  be  admitted  to  a  given  stage  or  to  be  invited  to  submit 
tenders and objective criteria to be used to choose the candidates in question. 

(a) 

Time limit for the submission of applications 

(b) 

Address to which they must be sent 

(c) 

Language(s) in which they must be written 

Criteria which will be applied in the award of the concession 

Date of dispatch of the notice 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  the  deadline  for  lodging 
appeals or, if need be, the name, address, telephone number, fax number and email 
address of the service from which this information may be obtained. 

Where appropriate, particular conditions to which performance of the concession is 
subject. 

Address where applications or tenders shall be transmitted. 

In case of one-stage procedures: 

Time  limit  for  receipt  of  tenders,  if  different  from  the  time  limit    the 

(a) 
submission of applications 

(b) 

time frame during which the tenderer must maintain its tender, 

(c) 

date, time and place for the opening of tenders, 

(d) 

persons authorised to be present at such opening. 

Where  appropriate,  indication  of  requirements  and  conditions  related  to  the  use  of 
electronic means of communication 

Information  whether  the  concession  is  related  to  a  project  and  /or  programme 
financed by European Union funds. 

ANNEX V  
INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES  

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

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I 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

INFORMATION  TO  BE  INCLUDED  IN  CONCESSION  AWARD  NOTICES 
PUBLISHED IN ACCORDANCE WITH ARTICLE 27 (1)  

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  entity  and,  where  different,  of  the  service  from  which 
additional information may be obtained.  

Type of contracting authority or entity and main activity exercised. 

CPV Nomenclature reference No(s).  

NUTS code for the main location of works in case of works concessions or NUTS 
code for the main place of performance in case of service concessions;  

Description of the procurement: nature and extent of works, nature and quantity or 
value of supplies, nature and extent of services. Where the concession is divided into 
lots, this information shall be provided for each lot. Where appropriate, description 
of any options. 

Description of award procedure used, in the case of award without prior publication, 
justification. 

Criteria  referred  to  in  Article  39  which  were  used  for  award  of  the  concession  or 
concessions.  

Date of concession award decision or decisions; 

Number of tenders received with respect of each award, including:  

number of tenders received from economic operators which are small 

(a) 
and medium enterprises, 

(b) 

number of tenders received from abroad, 

(c) 

number of tenders received electronically. 

10. 

For each award, name, address including NUTS code, telephone, fax number, email 
address and internet address of the successful tenderer(s) including 

information  whether  the  successful  tenderer  is  small  and  medium 

(a) 
enterprise, 

(b) 

information whether the concession was awarded to a consortium. 

11. 

12. 

13. 

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

Where appropriate, for each award, value and proportion of concession likely to be 
subcontracted to third parties. 

Information  whether  the  concession  is  related  to  a  project  and  /or  programme 
financed by European Union funds. 

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14. 

15. 

16. 

17. 

Name  and  address  of  the  oversight  body  and  the  body  responsible  for  review  and, 
where  appropriate,  mediation  procedures.  Precise  information  concerning  the 
deadline for review procedures, or if need be, the name, address, telephone number, 
fax  number  and  email  address  of  the  service  from  which  this  information  may  be 
obtained 

Date(s)  and  reference(s)  of  previous  publications  in  the  Official  Journal  of  the 
European Union relevant to the concession(s) advertised in this notice. 

Date of dispatch of the notice. 

Detailed  method  of  calculation  of  the  estimated  total  value  of  the  concession,  in 
accordance with Article 6. 

18. 

Any other relevant information. 

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II. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

INFORMATION  TO  BE  INCLUDED  IN  CONCESSION  AWARD  NOTICES 
PUBLISHED IN ACCORDANCE WITH ARTICLE 27(2) 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  entity  and,  where  different,  of  the  service  from  which 
additional information may be obtained.  

Description  of  the  procurement:  nature  and extent  of  works,  nature  and  quantity  or 
value of supplies, nature and extent of services, Where the concession is divided into 
lots, this information shall be provided for each lot. Where appropriate, description 
of any options. 

CPV Nomenclature reference No(s). 

Type of contracting authority or entity and main activity exercised. 

Date of concession award decision or decisions; 

For each award, name, address including NUTS code, telephone, fax number, email 
address and internet address of the economic operators to which the concession has 
been awarded. 

Value and main financial terms of the award, including fees and prices. 

Detailed  method  of  calculation  of  the  estimated  total  value  of  the  concession,  in 
accordance with Article 6. 

ANNEX VI 
INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES 
CONCERNING CONCESSIONS FOR SOCIAL AND OTHER SPECIFIC SERVICES 
(ARTICLE 27 (1)) 

1. 

2. 

3. 

4. 

5. 

6. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  entity  and,  where  different,  of  the  service  from  which 
additional information may be obtained. 

Type of contracting authority or entity and main activity exercised. 

CPV  Nomenclature  reference  No(s);  where  the  contract  is  divided  into  lots,  this 
information shall be provided for each lot.  

At  least  a  summary  indication  of  the  nature  and  quantity  of  the  services  and  if 
applicable, works and supplies provided. 

Number of tenders received. 

Value and main financial terms of the award, including fees and prices. 

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7. 

8. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

Name and address including NUTS code, telephone, fax number, email address and 
internet address of the successful economic operator(s). 

Any other relevant information. 

ANNEX VII 
INFORMATION TO BE INCLUDED IN NOTICES OF MODIFICATIONS OF A 
CONCESSION DURING ITS TERM ACCORDING TO ARTICLE 42  

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  entity  and,  where  different,  of  the  service  from  which 
additional information may be obtained. 

CPV Nomenclature reference No(s); 

NUTS  code  for  the  main  location  of  works  in  case  of  public  works  concessions  or 
works concessions or NUTS code for the main place of delivery or performance in 
service concessions; 

Description of the concession before and after the modification: nature and extent of 
the works, nature and quantity or value of supplies, nature and extent of services. 

Where  applicable,  modification  of  financial  terms  of  the  concession,  including 
increase in prices or fees caused by the modification. 

Description of the circumstances which have rendered necessary the modification.  

Date of concession award decision. 

Where applicable, the name, address including NUTS code, telephone, fax number, 
email address and internet address of the new economic operator or operators. 

Information  whether  the  concession  is  related  to  a  project  and  /or  programme 
financed by European Union funds. 

Name  and  address  of  the  oversight  body  and  the  body  responsible  for  review  and, 
where  appropriate,  mediation  procedures.  Precise  information  concerning  the 
deadline for review procedures, or if need be, the name, address, telephone number, 
fax  number  and  email  address  of  the  service  from  which  this  information  may  be 
obtained. 

Date(s)  and  reference(s)  of  previous  publications  in  the  Official  Journal  of  the 
European Union relevant to the contract(s) concerned by this notice. 

Date of dispatch of the notice. 

Any other relevant information. 

ANNEX VIII 
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS 

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For the purposes of this Directive:  

1. 

technical specification", " means one of the following: 

(a) 

in  the  case  of  public  works  concessions  or  works  concessions,  the  totality  of 
the  technical  prescriptions  contained  in  particular  in  the  concession  award 
documents,  defining  the  characteristics  required  of  a  material,  product  or 
supply,  so  that  it  fulfils  the  use  for  which  it  is  intended  by  the  contracting 
authority  or  entity.  Those  characteristics  include  levels  of  environmental  and 
climate  performance,  design  for  all  requirements  (including  accessibility  for 
disabled  persons)  and  conformity  assessment,  performance,  safety  or 
dimensions, 
the  procedures  concerning  quality  assurance, 
terminology,  symbols,  testing  and  test  methods,  packaging,  marking  and 
labelling, user instructions and production processes and methods at any stage 
of the life cycle of the works; those characteristics also include rules relating to 
design  and  costing,  the  test,  inspection  and  acceptance  conditions  for  works 
and  methods  or  techniques  of  construction  and  all  other  technical  conditions 
which  the  contracting  authority  or  entity  is  in  a  position  to  prescribe,  under 
general  or  specific  regulations,  in  relation  to  the  finished  works  and  to  the 
materials or parts which they involve; 

including 

(b) 

in the case of service concessions, a specification  in a  document defining the 
required  characteristics  of  a  product  or  a  service,  such  as  quality  levels, 
environmental  and  climate  performance  levels,  design  for  all  requirements 
(including  accessibility  for  disabled  persons)  and  conformity  assessment, 
performance, use of the product, safety or dimensions, including requirements 
relevant  to  the  product  as  regards  the  name  under  which  the  product  is  sold, 
terminology,  symbols,  testing  and  test  methods,  packaging,  marking  and 
labelling, user instructions,  production  processes  and  methods  at  any  stage  of 
the life cycle of the supply or service and conformity assessment procedures; 

2. 

"standard"  means  a  technical  specification  approved  by  a  recognised  standardising 
body  for  repeated  or  continuous  application,  compliance  with  which  is  not 
compulsory and which falls into one of the following categories: 

(a) 

international  standard:  a  standard  adapted  by  an  international  standards 
organisation and made available to the general public, 

(b)  European  standard:  a  standard  adopted  by  a  European  standards  organisation 

and made available to the general public, 

(c) 

national standard: a standard adopted by a national standards organisation and 
made available to the general public; 

3. 

"European technical approval" means a favourable technical assessment of the fitness 
for use of a product for a particular purpose, based on the fulfilment of the essential 
requirements  for  building  works,  by  means  of  the  inherent  characteristics  of  the 
product  and  the  defined  conditions  of  application  and  use.  European  technical 
approvals are issued by an approval body designated for this purpose by the Member 
State; 

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4. 

5. 

"Common  technical  specification"  means  a  technical  specification  laid  down  in 
accordance  with  a  procedure  recognised  by  the  Member  States  which  has  been 
published in the Official Journal of the European Union; 

"Technical reference" means any deliverable produced by European standardisation 
bodies,  other  than  European  standards,  according  to  procedures  adapted  to  the 
development of market needs. 

ANNEX IX 
FEATURES CONCERNING PUBLICATION 

1. 

Publication of notices 

The  notices  referred  to in  Articles  26  and  27  must  be  sent  by  the  contracting 
authorities or entities to the Publications Office of the European Union and published 
in accordance with the following rules:.  

Notices  referred  to  in  Articles  26  and  27  shall  be  published  by  the  Publications 

Office of the European Union  

The Publications Office of the European Union will give the contracting authority or 

entity the confirmation referred to in Article 28 (5). 

2. 

Publication of complementary or additional information 

Contracting  authorities  and  contracting  entities  shall  publish  the  specifications  and 
the additional documents in their entirety on the Internet. 

3. 

Format and procedures for sending notices electronically 

The  format  and  procedure  for  sending  notices  electronically  as  established  by  the 
Commission are made accessible at the Internet address ‘http://simap.europa.eu’. 

ANNEX X 
SERVICES REFERRED TO IN ARTICLE 17 

CPV Code 

7511000-4 and 

Description 

Health and social services 

from 85000000-9 to 85323000-9 

(except 85321000-5 and 85322000-2) 

75121000-0, 75122000-7, 75124000-1 

Administrative  educational,  healthcare  and 
cultural services 

75300000-9 

Compulsory social security services 

75310000-2, 75311000-9, 75312000-6, 

Benefit services 

75313000-3, 75313100-4, 75314000-0, 

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75320000-5, 75330000-8, 75340000-1 

98000000-3 

98120000-0 

98131000-0 

Other  community, 
services 

social  and  personal 

Services furnished by trade unions 

Religious services 

ANNEX XI 
LIST OF EUROPEAN UNION LEGISLATION REFERRED TO IN  
ARTICLE 4 (3) (b)  

Rights  which  have  been  granted  by  means  of  a  procedure  in  which  adequate  publicity  has 
been ensured and where the granting of those rights was based on objective criteria shall not 
constitute  "special  or  exclusive  rights"  within  the  meaning  of  this  Directive.  The  following 
lists procedures, ensuring adequate prior transparency, for granting authorisations on the basis 
of other legislative acts of the European Union which do not constitute "special or exclusive 
rights" within the meaning of this Directive: 

(a) 

(b) 

(c) 

(d) 

(e) 

Granting  authorisation  to  operate  natural  gas  installations  in  accordance  with  the 
procedures laid down in Article 4 of Directive 98/30/EC. 

Authorisation  or  an  invitation  to  tender  for  the  construction  of  new  electricity 
production installations in accordance with the provisions of Directive 96/92/EC. 

The granting in accordance with the procedures laid down in Article 9 of Directive 
97/67/EC of authorisations in relation to a postal service which is not or shall not be 
reserved. 

A  procedure  for  granting  an  authorisation  to  carry  on  an  activity  involving  the 
exploitation of hydrocarbons in accordance with Directive 94/22/EC. 

Public service contracts within the meaning of Regulation (EC) No 1370/2007 which 
have been awarded on the basis of a competitive tendering procedure in accordance 
with its Article 5(3). 

ANNEX XII 
REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC RECEIPT 
OF TENDERS, AND APPLICATIONS  

1. 

Devices for the electronic receipt of tenders and applications must at least guarantee, 
through technical means and appropriate procedures, that: 

(a) 

(a) 

the exact time and date of the receipt of tenders and applications can be 
determined precisely; 

it may be reasonably ensured that, before the time limits laid down, no-
one can have access to data transmitted under these requirements; 

(b)  where that access prohibition is infringed, it may be reasonably ensured 

that the infringement is clearly detectable; 

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(c)  only  authorised  persons  may  set  or  change  the  dates  for  opening  data 

received; 

(d)  during  the  different  stages  of  the  concession  award  procedure  access  to 
all  data  submitted,  or  to  part  thereof,  must  be  possible  only  through 
simultaneous action by authorised persons; 

(e) 

(f) 

simultaneous  action  by  authorised  persons  must  give  access  to  data 
transmitted only after the prescribed date; 

data  received  and  opened  in  accordance  with  these  requirements  must 
remain  accessible  only  to  persons  authorised  to  acquaint  themselves 
therewith, and 

(g) 

authentication of tenders must conform to the requirements set out in this 
Annex.  

ANNEX XIII  
INFORMATION TO BE INCLUDED IN PRIOR INFORMATION NOTICES 
CONCERNING CONCESSIONS FOR SOCIAL AND OTHER SPECIFIC SERVICES 
(as referred to in Article 26(3)) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  authority  or  contracting  entity  and,  where  different,  of  the  service  from 
which additional information may be obtained. 

Where  appropriate,  email  or  internet  address  at  which  the  specifications  and  any 
supporting documents will be available. 

Type of contracting authority or contracting entity and main activity exercised. 

CPV  Nomenclature  reference  No(s);  where  the  contract  is  divided  into  lots,  this 
information shall be provided for each lot.  

NUTS code for the main place of delivery or performance of service concessions 

Description of the services and where applicable, incidental works and supplies to be 
procured 

Estimated total value of concession(s); where the concession is divided into lots, this 
information shall be provided for each lot. 

Conditions for participation. 

Where applicable, time limit(s) for contacting the contracting authority or contracting 
entity in view of participation. 

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10. 

Where applicable, brief description of the main features of the award procedure to be 
applied. 

11. 

Any other relevant information. 

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