COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT OF AN INITIATIVE ON CONCESSIONS
Date: 2011-12-20
Institutions: European Commission
Subjects: administrative transparency, approximation of laws, award of contract, economic growth, freedom to provide services, innovation, national law, principle of legal certainty, public-private partnership, service concession, single market, technical barriers to trade, tendering

EUROPEAN COMMISSION 

Brussels, 20.12.2011 
SEC(2011) 1588 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT OF AN INITIATIVE ON CONCESSIONS 

Accompanying the document 

PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF 
THE COUNCIL 

on the award of concession contracts 

{COM(2011) 897 final} 
{SEC(2011) 1589 final} 

 
 
 
 
  
 
TABLE OF CONTENTS 

1. 
1.1. 
1.2. 
1.3. 

2. 
2.1. 
2.2. 
2.3. 
2.4. 

Introduction  ................................................................................................................... 1 
Scene Setter .................................................................................................................... 1 
Legal Background  .......................................................................................................... 2 
Context of the initiative .................................................................................................. 3 

Procedure  ....................................................................................................................... 5 
Studies ............................................................................................................................ 6 
Consultation with Member States and discussions with stakeholders ........................... 6 
Public consultations  ....................................................................................................... 6 
Steering group ................................................................................................................. 7 

The economic and social importance of concessions with respect to the internal 

3. 
market ......................................................................................................................................... 7 

4. 
4.1. 
4.1.1. 
4.1.2. 
4.1.3. 
4.2. 
4.2.1. 
4.2.2. 
4.2.3. 
4.3. 

Problem definition ....................................................................................................... 10 
Lack of legal certainty generates economic inefficiencies ........................................... 11 
Lack of clear definition of concessions........................................................ 11 
No clear obligations with respect to the award of concessions.................... 12 
Consequences of lack of legal certainty on concessions.............................. 13 
Entry barriers  ............................................................................................................... 15 
Barriers stemming from the divergence of national legal regimes  ............. 15 
Barriers stemming from unlawful practices ................................................. 16 
Consequences of entry barriers .................................................................... 17 
Insufficient legal protection of tenderers ...................................................................... 18 

5. 

6. 

7. 
7.1. 
7.2. 
7.3. 

8. 
8.1. 
8.2. 
8.3. 
8.4. 
8.5. 

Base line scenario  ........................................................................................................ 19 

Subsidiarity ................................................................................................................... 20 

Objectives...................................................................................................................... 21 
General objectives......................................................................................................... 21 
Specific objectives ........................................................................................................ 21 
Operational objectives................................................................................................... 21 

Policy options  ............................................................................................................... 22 
No policy change (Option 1) ........................................................................................ 22 
Focused infringement policy (Option 2) ....................................................................... 22 
Soft law (Option 3) ....................................................................................................... 23 
Legislation — content of the options ........................................................................... 24 
Legal instrument ........................................................................................................... 24 

9. 
9.1. 
9.1.1. 
9.1.2. 

Impact analysis of the legislative options ................................................................... 25 
Scope of legislation ............................................................................................... 25 
Utilities sector .............................................................................................. 25 
Priority and non-priority services................................................................. 25 

I

 
 
 
 
 
 
 
 
 
 
 
9.1.3. 

9.1.4. 
9.1.5. 

9.1.6. 
9.1.7. 
9.2. 
9.2.1. 
9.2.2. 
9.2.3. 
9.3. 
9.3.1. 
9.3.2.  
9.3.3. 
9.4. 
9.4.1. 

Public passenger transport services by rail and road as covered by Regulation  
1370/2007 .................................................................................................... 26 
Air transport services as covered by Regulation 1008/2008........................ 26 
Concessions awarded to entities enjoying of exclusive rights granted in 
compliance with EU law...............................................................................26 
Concessions of less important value ............................................................ 26 
Scope of application in time ........................................................................ 27 
Option 4: Legislation — Basic rules  .................................................................... 28 
Option 4: Legislation — Basic rules — Economic Impact.......................... 33 
Option 4: Legislation — Basic rules — Social Impact................................ 33 
Option 4: Legislation — Basic rules — Environmental Impact .................. 34 
Option 5: Legislation — Detailed rules ................................................................ 35 
Option 5: Legislation — Detailed rules — Economic Impact ..................... 37 
Option 5: Legislation — Detailed rules — Social Impact ........................... 38 
Option 5: Legislation — Detailed rules — Environmental Impact ............. 38 
Option 6: Legislation — Mixed rules ................................................................... 38 

Option 6: Legislation — Mixed rules — Economic, Social and  
Environmental impact .................................................................................. 41 

10. 

 Comparing the options................................................................................................ 42 

11.  Monitoring and evaluation .......................................................................................... 42 

Annex I — Outcome of the consultations ................................................................................. 44 

Annex II — Overview of the MS legislation   ........................................................................... 76 

Annex III — List of consultations with stakeholders  ............................................................... 92 

Annex IV — Summary of the report «Public services in the European Union and in the 27 Member 
States» (potential for concession contracts) ............................................................................... 94 

II

 
 
  
  
 
 
 
 
 
 
 
 
 
 
IMPACT ASSESSMENT OF AN INITIATIVE ON CONCESSIONS 

Lead DG: MARKT 

Agenda planning: Commission Work Programme, IV Q 2011 

1.  INTRODUCTION  

1.1. 

SCENE SETTER 

The legislative initiative on concessions is to be seen as one of the measures that can help ensure a 
more efficient allocation of public money by creating the conditions for a competitive award of this 
type of contract.  

Today, in the particular context of severe budgetary constraints and economic difficulties in many 
EU Member States, the efficient allocation of public funds is a point of special concern, leading to 
increased pressure for new ways to obtain the best possible procurement results for the available 
resources.   

When  public  authorities  need  to  mobilise  private  capital  and  know-how  to  supplement  scarce 
public  resources,  concessions  are  a  particularly  attractive  way  of  carrying  out  projects  of  public 
interest.  Concession  holders  may,  for  instance,  build  and  manage  motorways,  provide  airport 
services and operate water distribution networks. In undertaking these tasks, they usually need to 
make substantial up-front investments which are then recouped by collecting fees from the users of 
the infrastructure or service.  

The  use  of  concessions  may  allow  for  new  investments  in  public  infrastructures  and  services 
without increasing public debt figures in specific circumstances according to Eurostat guidelines. 
Hence, in the current situation the initiative on concessions is of immediate relevance as a support 
to economic recovery. 

Concession  contracts  are  different  from  public  contracts,  which  are  traditionally  used  by  public 
authorities  to  procure  supplies,  works  or  services.  In  the  case  of  public  contracts,  an  economic 
operator is awarded a fixed payment for completing the required work or service. Concessions, on 
the other hand, are contractual arrangements between a public authority and an economic operator 
(the concession holder) where the latter receives substantial remuneration through being permitted 
to exploit the work or service.  

Hence,  concessions  involving  private partners are a  particular  form  of  Public Private  Partnership 
(PPP).1  Although  PPPs  have  never  been  defined  in  EU  Public  Procurement  legislation,  they  are 
usually understood to be cooperation between a public authority and a private partner, where the 
latter  ‘(...)  bears  risks  that  are  traditionally  borne  by  the  public  sector  and  often  contributes  to 

1 For the purpose of statistical treatment, concessions are defined as projects where most of the revenue is generated by third 
party users, whereas in PPPs  it is generated by public authorities. However, this distinction does not coincide with the 
legal criterion to define concessions and therefore it is not used in the present text. 

1

 
 
 
 
 
 
 
                                                 
 
financing the project’2. Some PPPs are structured as public contracts, but the majority of PPPs take 
the form of concessions.  

The award of public contracts and concessions is subject to EU rules. The same rules do not apply 
to different categories of concessions and public contracts.  

Unlike  public  contracts,  which  are  exhaustively  regulated  in  secondary  legislation,  and  works 
concessions,  which  are  partially  covered  by  secondary  rules,  the  award  of  service  concessions  is 
only subject to the general principles of the Treaty.   

This  legal  loophole  results  in  irregularities  and  economic  inefficiencies,  which  are  discussed 
further  in  the  text,  and  has  a  negative  impact  on  the  achievement  of  the  best  value  for  public 
money.   

Thus,  the  initiative's  objective  is  to  create  a  stable  legal  framework  for  public  authorities  and 
economic  operators,  ensuring  non-discrimination  and  fair  access  to  service  markets  in  Member 
States.  

1.2. 

LEGAL BACKGROUND 

The  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  like  its  predecessors,  does  not 
contain  any  specific  provisions  governing  the  award  of  public  contracts.3  It  does,  however, 
establish  four  fundamental  freedoms  and  the  ensuing  principles  of  equal  treatment,  non-
discrimination,  transparency  and  proportionality  which  contracting  authorities  and  contracting 
entities (hereinafter CAEs) must observe when awarding public contracts and concessions. These 
principles have been interpreted and developed by the Court of Justice of the European Union (‘the 
Court’).   

In  order  to  apply  the  Treaty  principles  more  efficiently,  secondary  legislation  was  developed 
containing  specific  rules  on  award  procedures.  Today,  two  main  directives  regulate  public 
procurement  in  the  EU:  Directive  2004/18/EC  (‘Classic  Directive’)  and  Directive  2004/17/EC 
(‘Utilities Directive’).4 

The  European  legislature  decided  to  differentiate  between  public  contracts,  conceived  as  the 
procurement of works, goods or services against payment, and concession contracts, where works 
or services are provided to CAEs or to users in consideration for the right to exploit a facility.5   

With regard to the latter, it should be pointed out that the award of works concessions under the 
Classic  Directive6  is  currently  subject  to  a  limited  number  of  provisions  only.  In  particular,  it  is 

2 See Commission interpretative communication on the application of Community law on Public Procurement 
and Concessions to institutionalised PPP (IPPP) (OJ 91, 12.4.2008, p. 1). 
3  The  only  reference  to  public  procurement  is  to  be  found  in  Article  199  (4)  of  the  TFUE  in  relation  to 
investments financed by the EU in the overseas countries and territories. 
4 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of 
procedures  for  the  award  of  public  works  contracts,  public  supply  contracts  and  public  service  contracts, 
Directive  2004/17/EC  of  the  European  Parliament  and  of  the  Council  of  31  March  2004  coordinating  the 
procurement  procedures  of  entities  operating  in  the  water,  energy,  transport  and  postal  services  sectors  
(OJ L 134, 30.4.2004). 
5  Definitions  of  works  and  services  concessions  in  Article  1(3)  and  (4)  of  Directive  2004/18/EC  and 
Article 1(3)(a)  and  (b)  of  Directive  2004/17/EC.  The  first  provisions  on  works  concessions  date  back  to  the 
adoption of Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC (see OJ L 210, 21.7.1989). 
6 Articles 56 to 65 of Directive 2004/18/EC. 

2

 
 
 
                                                 
compulsory  to  publish  a  concession  notice  in  the  EU  Official  Journal  (EUOJ)  and  to  respect  a 
minimal period for the submission of applications. Moreover, there are rules on the obligations of 
concession  holders.  Bidders  also  enjoy  judicial  guarantees  provided  by  Directive  2007/66 
(‘Remedies  Directive’).7  Their  award  is  supplemented  by  the  general  Treaty  principles.  On  the 
other  hand,  the  award  of  works  concessions  under  the  Utilities  Directive  is  only  subject  to  the 
general principles of the TFEU.   

Similarly, service concessions are currently subject only to the general principles of the TFEU.  

In  practice,  the  distinction  between  works  concessions  and  service  concessions  may  prove  to  be 
difficult to determine. The problems identified below do not concern all categories of works and 
service  concessions  to  the  same  extent.  As  already  explained,  the  existing  provisions  already 
regulate some aspects of the award of a major part of works concessions. As a result, the solutions 
discussed  in  the  report  would  affect  different  categories  of  concessions  to  a  different  degree. 
Necessary clarifications in this regard will be provided in the relevant sections of the Report.  

Table 1– Rules of the Public Procurement Directives applicable to public contracts and concessions 

Publication 
in the  
OJEU 

Min. 
deadline for 
submission  

Rules on 
additional 
services 

Rules  
on sub-
contracting 

Remedies 

Rules on 
selection 
criteria 

Provisions 
on  
tech. spec. 

Rules on 
award  
criteria 

Pub. of 
contract 
award  
notices 

Rules on 
choice of 
procedures 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

Public 
contracts in 
‘classical’ 
sectors 

Public 
contracts in 
‘utilities’ sector 

Works 
concessions 

Works 
concessions in 
the utilities 
sector 

Service 
concessions in 
both classical 
and utilities 
sectors 

1.3. 

CONTEXT OF THE INITIATIVE  

The  potential  of  a  legislative  initiative  on  concession  contracts  for  creating  a  supportive  EU 
framework for PPPs was singled out in the Commission’s Communication on «Mobilising private 

7 Directive 2007/66/EC, (OJ L 335, 20.12.2007) 
. 

3

 
 
 
 
  
 
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
 
 
 
 
                                                 
and  public  investment  for  recovery  and  long  term  structural  change:  developing  Public  Private 
Partnerships».8  

The Europe 2020 strategy9 highlights the importance of PPPs for accelerating growth and boosting 
innovation.  The  Single  Market  Act10  announced  the  adoption  of  a  legislative  initiative  on 
concessions in 2011 in order to promote PPPs and help deliver better value for money for users of 
services  and  for  contracting  authorities,  while  improving  market  access  for  EU  undertakings  by 
ensuring transparency, equal treatment and a level playing field across the Single Market.11 

The  following  sections  will  demonstrate  how  the  lack  of  a  complete  EU  legal  framework 
applicable to concessions as a major part of PPPs hinders their development and undermines their 
benefits.   

The  current  initiative  is  not  the  first  attempt  to  submit  concessions  to  a  more  precise  legal 
framework.  In  1989  a  number  of  provisions  were  adopted  on  the  award  of  works  concessions.12 
Following the failure to agree on procedures on the award of service concessions in the proposal 
for  the  public  service  contracts  directive,13  in  1992,  the  Commission  issued  three  subsequent 
Communications addressing the subject of concessions.14  

The initiative is pursued in parallel to the revision of Public Procurement Directives15. It will result 
in  the  adoption  of  a  separate  legal  instrument,  regulating  the  award  of  concesssions.  The  three 
proposals: the two resulting from the revision of the public procurement framework and the one on 
a directive on concessions, will be submitted for adoption by the Commision in December 2011. 

The  main  reasons  for  adoption  of  a  set  of  rules  on  concessions  separate  from  the  revised 
framework of Public Procuremnt are related to differences of  the objectives pursued as well as to 
the very nature of the envisaged rules on concessions.  

In  the  first  place  it  has  to  be  underlined  that  while  the  general  revision  of  public  procurement 
rules aims at modernising and simplifying the current framework, the basis of which has been put 
in place roughly 40 years ago, the purpose of a new directive on concessions is to propose, for the 
first time, a comprehensive, clear and unambiguous set of provisions in the area which so far has 
been characterized by a continuous uncertainty and erroneous interpretation, often leaving room 
for unlawful practices.   

8 COM(2009) 615 final of 19.11.2009. 
9 COM(2010) 2020 final of 3.3.2010, point 3.2. 
10 COM(2010) 608 final, of 27.10.2010, point 1.4, proposal nº 18. 
11 See footnote 10 above. 
12 See Directive 89/440/EEC, (OJ L 210, 21.7.1989). 
13  The  Commission  expressly  proposed  to  include  «public  service  concessions»  within  the  scope  of  Directive 
92/50  (OJ  1991  C  250)  covering  public  service  contracts  in  general.  However,  the  Council  eliminated  all 
references  to  public  service  concessions,  in  particular  because  of  the  differences  between  Member  States  as 
regards  the  delegation  of  the  management  of  public  services  and  modes  of  the  delegation,  which  could  create 
imbalances in the opening-up of the public concession contracts (see point 6 of document No 4444/92 ADD 1 of 
25 February 1992,  ‘Statement of reasons of the Council and annexed to the common position of the same date). 
14  These  are:  Commission  interpretative  communication  on  concessions  under  Community  law  (OJ  C  121, 
29.4.2000).  Communication  on  Public-Private  Partnerships  and  Community  Law  on  Public  Procurement  and 
Concessions  of  November  2005  COM(2005)  569,  Commission’s  Communication  on  «Mobilising  private  and 
public  investment  for  recovery  and  long-term  structural  change:  developing  Public  Private  Partnerships» 
COM(2009) 615 final of 19.11.2009. 
15 COM(2010) 608 final, point 1.4, proposal nº 17. 

4

 
 
                                                 
Secondly, concession contracts display a number of distinct characteristics as compared to public 
contracts.  These  are:  the  exposure  of  the  contratctor  to  the  economic  risk  of  providing  the 
services,  long  average  duration,  greater  complexity    and  important  contract  value  as  well  as  a 
patchwork of national rules determining the status of concessions in various Member States.  

Furthermore,  the  limited  character  of  the  proposed  rules  allows  for  a  joint  framework  covering 
concessions in both the classic and the utilities sector, preserving the specificities of the utilities 
when absolutely necessary. More developed rules on public contracts and contracts in the utilities 
sector  would  involve,  by  contrast,    more  differences  between  legislation  in  both  sectors,  which 
would not allow for such a simplification. 

Last but not least, the Commission considers a legislative proposal in the field of concessions as 
one  of  the  key  measures  that  will  facilitate  the  setting  up  of  PPPs,  and  as  such  considers  it  as  a 
means of stimulating economic recovery in the context of the current economic downturn. PPPs are 
also  important  for  accomplishing  structural  reforms16  and  could  play  an  increasing  role  in 
accompanying  EU  policies  in  the  context  of  the  next  multiannual  financial  framework,  as 
suggested by the EU Budget review.17  

2.  PROCEDURE 

This  Impact  Assessment  Report  (IAR)  has  been  prepared  in  accordance  with  the  Commission’s 
principles  on  Better  Regulation.  The  initiative  is  the  result  of  an  extensive  dialogue  and 
consultation with all major stakeholders, including CAEs, economic operators and social partners, 
as well as with the Member States. The assessment is also based on the findings of three studies 
which have been carried out for the Commission.   

The  Report  was  consulted  by  the  Impact  Assessment  Board  (IAB)  on  26  January  and  the  Board 
issued its opinion on 28 January. Subsequently, the Board issued its second opinion, on the revised 
text of the Report on 21st March 2011.  Following the recommendations of the Board, the text of 
the Report has been further supplemented in the following sections: stressing the importance of the 
initiative for efficient spending of public resources (Introduction, Section 4); scope of the initiative 
and  relation  to  the  revision  of  Public  Procurement  directives  (Sections  1.3  and  9.1);  additional 
evidence on the magnitude of the problem, consequences of identified distortions  (Section3, 4 – 
4.1.3, 4.2.2, Annex IV); better justification of the choice of the ‘mixed rules’ option (Section 9.4); 
choice  of  the  legal  instrument  (Section  6,  8.5);  justification  of  the  exclusion  of  non-priority 
services and the choice of threshold (Section 9.1.2, 9.1.6); scope of various options (Sections 9.2, 
9.3, 9.4); social and economic impact (Section 9.2.1, 9.2.2); implementation aspects (Sections 9.2, 
9.3, 9.4 in fine); and different treatment of public contracts and concessions (sections 4.2.2, 9.1.6 
and 9.4). Across the whole text references to specific cases in support of the existence and scale of 
the problem have been added.  

16  In  view  of  the  present  reduced  capacity  of  national  administrations  to  finance  the  necessary  investments  in 
infrastructures, in particular to meet strict EU environmental standards. 
17 COM(2010) 700 final of 19.10.2010. 

5

 
 
 
 
 
 
 
 
 
 
                                                 
2.1. 

STUDIES 

Price  Waterhouse  Coopers  —  The  2007  PwC  report  on  PPPs  aimed  inter  alia  at  assessing  the 
extent,  range  and  type  of  approach  adopted  to  partnerships  and  concessions  on  the  market,  and 
described  the  impacts  which  might  be  expected  from  the  introduction  of  a  new  EU  legislative 
initiative.18  

Centre  for  Strategy  &  Evaluation  Services  —  The  2009  CSES  report  sought  to  determine  the 
sector spread of service concessions in eight Members States and to identify any sectoral issues to 
be taken into consideration in an assessment of the potential impact of the EU secondary rules.19 

College  of  Europe  —  The  2010  College  of  Europe  study  aimed  at  identifying  how  public 
authorities in seven Member States inform economic operators of their intention to award service 
concessions.20 

2.2. 

CONSULTATION WITH MEMBER STATES AND DISCUSSIONS WITH STAKEHOLDERS 

As  well  as  consulting  Member  States  in  2007  and  2010  within  the  framework  of  the  Advisory 
Committee  on  Public  Procurement  on  different  aspects  of  an  initiative  on  concessions,  the 
Commission departments held bilateral meetings with Member States.21 They also conducted about 
60 bilateral meetings with relevant stakeholders active on the concessions market.22  

2.3. 

PUBLIC CONSULTATIONS 

On 30 April 2004 the Commission issued a Green Paper on PPPs and Community Law on Public 
Contracts  and  Concessions.23  On  3  May  2005  the  Commission  departments  published  a  working 
report  on  the  public  consultation  on  the  Green  Paper  on  PPPs  and  Community  law  on  public 
contracts and concessions,24 which was followed by the Commission’s Communication on PPPs of 
November 2005.  

Between  12  May  and  9  July  2010  a  public  online  consultation  was  held  through  an  Interactive 
Policy  Making  site  (‘online  consultation’).  It  was  addressed  to  the  general  public  and  aimed  at 
collecting views and experiences regarding concessions and learning about how the current rules 
work. 

Between  5  August  and  30  September  2010  the  Commission  departments  ran  a  targeted  public 
consultation (‘targeted consultation’). This consultation, which was of a more technical nature, was 
addressed to the business community, social partners and CAEs. Its aims were to learn from these 
groups’ experience on concessions, hear their views on the working of the current rules and collect 
suggestions for future improvements.25 

18 See http://ec.europa.eu/internal_market/publicprocurement/index_en.htm. 
19 See footnote 18 above. 
20 See footnote 18 above. 
21  With  the  exceptions  of  BE,  LV,  MT,  and  SK  where,  for  different  reasons,  the  Commission’s  departments' 
invitations did not have a follow-up. 
22 List of meetings in Annex III. 
23 COM(2004) 327 final of 30.4.2004. 
24 SEC(2005) 629 of 3.5.2005. 
25 See Annex I A on the outcome of the consultations. 

6

 
 
 
 
 
 
 
 
 
 
                                                 
The  results  of  the  abovementioned  consultations  highlighted  the  fact  that  stakeholders  hold 
contrasting  views  when  it  comes  to  awarding  concessions.  They  have  also  confirmed  that  (i)  the 
uncertainty  of  the  present  rules  and  access  to  the  market  cause  problems  and  (ii)  a  targeted  EU 
intervention is desirable.  

2.4. 

STEERING GROUP 

The  Steering  Group  was  set  up  by  representatives  of  the  following  European  Commission 
departments: SG, LS, DG ECFIN, DG EMPL, DG REGIO, DG ENTR, DG COMP, DG MOVE, 
EUROSTAT.26  The  group  met  three  times:  on  25  May  2010,  30  November  2010  and 
3 December 2010.  DG  MARKT  also  conducted  bilateral  meetings  with  the  SG,  the  LS,  DG 
MOVE, DG REGIO, DG EMPL and DG COMP. Consultations with DG EMPL were particularly 
far-ranging and included very close cooperation, in particular on preparing the consultation which 
was addressed to the social partners. The contributions of the members of the Steering Group have 
been taken into account in the content and shape of this IAR. 

THE  ECONOMIC  AND  SOCIAL  IMPORTANCE  OF  CONCESSIONS  WITH  RESPECT  TO  THE 

3. 
INTERNAL MARKET 

Concession  contracts  underpin  an  important  share  of  economic  activity  in  the  EU.  They  are 
particularly  significant  in  economic  sectors  that  are  of  great  importance  to  both  citizens  and 
economic operators, such as network industries and services of general economic interest.27 They 
are  important  vehicles  in  the  long-term  structural  development  of  infrastructures  and  strategic 
services, as they help to harness private sector expertise, achieve efficiency and deliver innovation. 
Moreover,  their  role  is  also  likely  to  become  more  prominent  in  years  to  come  in  the  face  of 
increasing  constraints  on  public  finances.  Indeed,  by  transferring  the  main  operating  risks  to  a 
private partner and alleviating the public authorities of this burden, concessions make it possible, in 
certain cases, to carry out much needed public works and services while keeping the corresponding 
commitments  out  of  the  government  balance  sheet.28  29  There  is  further  potential  for  increased 
take-up of concessions in many projects supported by the European funds, where the use of PPPs 
in co-funded projects is currently low.30 

A decision to resort to a concession should be assessed on a case-by-case basis and its costs and 
benefits  should  always  carefully  and  comprehensively  be  compared  with  those  of  alternative 
solutions.   

26 DG SANCO did not attend the meeting of the Steering Group since it considered that it was not concerned by 
the initiative. 
27  In  the  Commission’s  2006  report  on  the  evaluation  of  the  performance  of  Network  industries  providing 
services of general economic interest, network industries were estimated to account for 7 % of the EU 15 total 
value  added.  In  the  new  Member  States  this  share  was  calculated  to  be  much  higher,  ranging  from  9.8 %  in 
Hungary to 14.3 % in the Slovak Republic. In 2005, slightly  more than 10.5 million people were employed in 
EU25 network industries corresponding to 5.4 % of the total workforce. A recent study on public services in the 
EU estimates the number of persons employed by Services of General Interest to be over 64 million. The number 
of  enterprises  providing  SGI  is  estimated  to  be  more  than  500.000.  SGI  providers  of  electricity,  gas,  water, 
transport, post and telecommunications and research contribute to 6.4 % of the total investment in the EU which, 
for the year 2006 was over EUR 150. (see «Public services in the European Union and in the 27 Member States» 
a study commissioned in the framework of the ‘Mapping of the Public services’ project managed by CEEP). 
28 See rules on statistical accounting of Public Private Partnerships, Eurostat News Release 18/2004: Treatment 
of  public-private  partnerships  and  ESA95  Manual  on  government  deficit  and  debt  2010  Edition:  Chapters  on 
public infrastructure financed and exploited by corporations and on public-porivare partnerships.   
29 PWC study, p. 56. 
30 This is partly due to the perception that combining sets of EU and different national rules and practices and 
timetables in one project may be complex. See Commission’s Communication, footnote 8, para. 3.3. 

7

 
 
 
 
 
                                                 
The  fact  that  Member  States  use  different  labelling  for  concessions  and  the  current  lack  of 
transparency on their award makes systematic and precise measuring of their economic and social 
importance  difficult.  Comparable  data  across  the  Internal  Market  are  generally  lacking,  or  
inconsistent,  particularly  in  Member  States  where  concessions  are  not  sufficiently  regulated. 
However,  there  is  some  relevant  data  with  regard  to  PPPs  and  concessions  in  several  Member 
States where concessions are subject to specific rules. According to the PwC study, the value of all 
PPPs between 2000 and 2006 in the sectors and Member States analysed31 was estimated32 to be 
worth  € 230  billion.  Based  on  a  thorough  review  of  contract  samples,  PwC  concluded  that  over 
60 %  of  all  PPP  contracts  qualified  as  concessions.33  This  would  bring  the  total  value  of 
concessions in those Member States for the relevant period to € 138 billion. Such percentage can be 
extrapolated  to  subsequent  references  to  PPPs  in  the  present  text.  The  table  below  provides 
examples of the importance of concessions in different sectors, on the basis of statistics on either 
concessions or data concerning PPPs. 

Table 2 — Value of concessions in selected Member States (as GDP percentage) 

Member  
State 
FR 

IT 

UK 

DE 

ES 

PL 
CZ 

Information about concessions∗ 

There is an estimated stock of 10.000 concession-type contracts worth around € 80 billion34 (equivalent to 2.1 % of 
GDP).  The  most  relevant  sectors  are  water  and  sanitation,  waste  management,  gas  and  electricity  infrastructure 
management, motorways, sport facilities (60-70 % of concession-type contracts) and heating networks. 

There were 530 invitations to tender for concessions in 2009 with a total value of € 8.4 billion (out of which € 536 
million corresponded to service concessions). The overall value of concessions published since 2006 and up to 2009 
amounts  to  € 30.4  billion  (equivalent  to  2.1 %  of  GDP).  Data  for  2009  show  that  use  of  concessions  was  already 
picking up after a marked slowdown in 2007-2008.35 

More than 700 PPP deals were signed up to March 2006 with a total capital value of over € 60 billion (equivalent to 
3 % of GDP). Based on the PwC study, most of the UK contracts would qualify as concessions36, even if this has not 
been confirmed by the CSES study37 In the UK, concessions are to be found in public transport, roads and bridges, 
waste management, waste water management, marine services and care homes. 
PPP  projects  were  estimated  in  2007  at  € 3  billion  of  investment  (equivalent  to  0.1 %  of  GDP).  Investment  at  the 
Federal/Land level averaged € 70 million per project, while at the municipal level the average investment was around 
€ 16 million.38 The sectors most concerned are water and energy supply, schools, sport and leisure facilities. 
Since 2006, 6169 concessions have been advertised in the national Official Journal.39 Concessions are most prevalent 
in  the  road  sector,  where  the  total  capital  value  was  estimated  at  €  8  billion  in  2005  (equivalent  to  0.9 %  of  GDP). 
Concessions  in  water  distribution  and  waste-water  management  as  well  as  in  waste  have  been  developing  quite 
rapidly.40  
Limited concession-based activity, mostly focused on the motorway sector. 41 
PPP  projects  with  a  total  capital value  of  € 1.1  billion42  in  2005  (equivalent  to  1.1 %  of  GDP).  This  value  refers  to 
projects in health, transport, and public buildings sectors. There are several concession contracts in the waste/drinking 
water and waste sectors. 

31 Sectors: transport, (roads, bridges and tunnels/mass rapid transit), water, waste, health, education and public 
sector accommodation; Member States: CZ, DE, ES, FR, IT, PL, SE, UK, see PwC study, figure 3.1, p. 54. 
32  The Dealogic  Projectware  database used  in  the estimation  is  a database  of  project finance  transactions. The 
concessions  and  PFI/PPP  projects  included  are  normally  those  involving  an  element  of  debt  finance  and 
therefore it is unlikely to capture all concession contracts, see footnote 29. 
33 See PwC study Tables 3.15 & 3.16, p. 104. 
34 Data provided by the French authorities. 
35 Data sent to the Commission services by the Italian authorities. 
36 See PwC study, pp. 54 and 103. 
37 See CSES study, p. 52. 
38 See PwC study, p. 65. 
39 See CSES study, p. 27. 
40 See CSES study, p. ??  
41 See PwC study, p. 74. 
42 See PwC study, p. 57. 

8

 
 
 
 
                                                 
Member  
State 
EL 

PT 

Information about concessions∗ 

In 2009 a total of 52 PPP projects worth € 5.7 billion were at different stages of the approval process (equivalent to 
2.5 %  of  GDP).43  They  concerned  the  construction  and  maintenance  of  hospitals,  government  buildings,  schools, 
prisons and universities. 
In 2010 there were 115 concession contracts representing an investment value of €  32.5 billion (equivalent to 19.87 % 
of GDP).  44 Sectors covered: water distribution and waste water, waste, energy and heating services, transport, port 
and airport services, health services, road and motorway operation among others. 

∗ All GDP data in this table (with the exception of Portugal) originate from Eurostat. 

With  reference  to  the  sectoral  coverage  of  concessions,  studies  done  as  well  as  the  consultations 
carried out show that concessions are mostly used in water distribution and treatment, road and rail 
transport, ports and airports services, motorway maintenance and management, waste management, 
energy  or  heating  services,  leisure  facilities  and  car  parks.45  Concessions  in  these  sectors  imply 
significant amounts of capital investment.  

However, on the basis of the studies and consultations, it is also possible to identify, sectors, where 
concessions seem to be less present. This is the case in health, social and education services, which 
are qualified in the Public Procurement Directives as ‘non-priority’ services. 

Table 3 — Value of concessions in selected sectors of activity  

Sector 
Water 
provision,
waste  water  &
sewage 

Economic & social importance  
Eurostat  data  on  ‘Collection,  purification  and 
distribution of water’ (NACE = E41): 
• 
• 
million 
• 
(2007):3.7 million 

EU turnover (2007): € 50 billion 
No  of  enterprises  in  the  EU  (2007):9 

No  of  persons  employed 

the  EU 

in 

Waste management  Eurostat data on ‘Recycling’ (NACE = DN37): 

No  of  persons  employed 

EU turnover (2007): € 50.7 billion 
No  of  enterprises  in  the  EU  (2007):  17.4 

• 
• 
million 
• 
(2007):1.6 million. 
Only  the  members  of  the  industrial  association 
FEAD, covering 19 Member States, accounting for a 
60 %  share  in  the  household  waste  market  and 
handling  more 
than  75 %  of 
industrial  and 
commercial  waste  in  Europe,  can  boast  an  annual 
turnover of € 54 billion.46 

the  EU 

in 

Situation regarding concessions 
EU:  33 %  of  Europeans  served  by  economic 
operators (according to International Federation) 
FR: 72 % of the population served through service 
concessions;  2.536  concessions  underway  in  2007 
with 700 concessions re-opened every year.  
ES:  36 %  of 
the  population  served  under  a 
concession  contract,  16 %  served  through  IPPPs, 
some under concession contracts. 
DE:  6 %  of  the  population  served  by  private 
companies, 39 % by IPPPs. 
IT:  growing  20 %  of  the  population  served  by 
private or mixed entities of Private Water Operators 
(Aquafed) 
EU:  50 %  of  waste  treatment  is  operated  on  the 
basis of a concession47  
FR: 
80-90 % 
concessions. 

underway 

contracts 

are 

of 

Motorways & roads 360 000  people  employed,  with  a 

€ 66 billion.48 

turnover  of 

EU  (notably  FR,  IT,  PT):  extensive  presence  of 
concessions  

43 CSES study, p. 41. 
44 Source: Direcção Geral do Tesouro e Finanças, Boletim Trimestral nº 2/2010 (30.06.2010) referred to by the 
Portuguese authorities in their response to the CAEs’consultation. 
45 For the full list of sectors concerned, see CSES report, pp. 31-34. 
46 See footnote 41 above, p. 77. 
47 See footnote 41 above, p. 80. 
48 See footnote 41 above p. 83. 

9

 
 
 
 
 
 
                                                 
Sector 
Ports & airports 

Energy & heating 

in  directly 

themselves  and 

Economic & social importance  
There  are  currently  over  1000  seaports49  in  Europe 
handling  3.5  billion  tonnes  of  cargo  a  year  and  350 
million passengers and employing 350.000 people in 
the  ports 
related 
services.50 In airports concessions some of the main 
companies active in this market, (Swissport, Menzies 
and  Aviapartner)  employ  a 
total  of  50.000 
employees.51 
Eurostat data on ‘Electricity, gas, steam and hot water 
supply’ (NACE = E40): 
• 
• 
million 
No of persons employed in the EU (2007): 12 million 

EU turnover (2007): € 940 billion 
No  of  enterprises  in  the  EU  (2007):  26.8 

Situation regarding concessions 
EU:  In  the  airport  sector,  concessions  in  the 
handling of passengers, baggage and freight, in car 
parking and catering 

FR: 54 % of contracts are concessions52 

According to the European Investment Bank, in all more than 1300 PPP contracts were signed in 
the EU from 1990 to 2009, representing a capital value of more than EUR 250 billion.53 

The EIB itself, which is Europe’s foremost funder of PPP projects, has a portfolio of 120 projects 
representing  an  investment  of  around  EUR  25  billion.  Funding  of  new  projects  was  in  excess  of 
EUR  3.5  billion  in  2008  and  in  2009  was  worth  EUR  2  billion  despite  difficult  economic 
conditions.54 Bearing in mind the share of concessions in PPP set-ups, the above numbers confirm 
their current and potential economic importance.  

Additional information on the use of concessions by Member States is provided in Annex IV with 
reference to the modes of delivery of public services.55 

In the light of the data quoted above, it can be concluded that concessions are important not only in 
terms of their value, but also because they are used in vital sectors of the economy. Many of these 
sectors include services that directly affect businesses and the quality of life of users across the EU. 
However,  the  take  up  of  concessions  is  very  uneven  across  Member  States.  The  information 
gathered shows that there is potential for further development of this type of contract.  

4. 

PROBLEM DEFINITION 

One of the impacts of having adequate rules for public purchases (thus also rules for the award of 
concessions) is a more efficient allocation of public resources.  

According to OECD data (referred to in Section 4.2.1), the estimated cost savings generated by the 
use  of  competitive  tendering  for  the  delivery  of  public  services  can  range  from  10 %  to  30 % 
(resulting  from  the  externalisation  of  certain  public  tasks  and  the  improvement  of  previously 
applied procurement practices).  

49 See Communication from the Commission on a European Ports Policy, COM(2007) 616 final of 18.10.2007, 
sections, 4.1, 4.3. 
50 See CSES study, p. 67. 
51 See footnote 46 above, p. 76.  
52 See footnote 46 above, p. 45. 
53 The EIB notes several difficulties in compiling a comprehensive database on PPPs in Europe, particularly the 
fact  that  data  available  on  actual  PPP  investment  is  poor  and  incomplete.  See  EIB,  «Economic  and  Financial 
Report 2010/04 — Public Private Partnerships in Europe — Before and During recent financial crisis». 
54  See  presentation  made  by  the  EIB  to  the  EPEC  —  Private  sector  Forum  II,  Europe  2020  —  A  view  of  the 
future, Brussels, 2 June 2010. 
55  Information  provided  in  the  report  «Public  services  in  the  European  Union  and  in  the  27  Member  States» 
study commissioned in the framework of the ‘Mapping of the Public services’ project managed by CEEP. 

10

 
 
 
 
 
 
 
 
 
                                                 
In one Member State the introduction of the obligation to follow a competitive procedure and to 
publish a notice at the national level resulted in annual savings estimated to be up to 9 %, as well as 
in significant technological improvements (see Section 9.2.1 for further analysis).  

These  figures  are  an  indication  of  the  significant  impact  of  a  clear  and  appropriate  legal 
environment  on  the  efficiency  of  public  spending.  They  also  underline  the  importance  of  a 
framework  which  stimulates  competition  and  guarantees  optimal  organisational  arrangements  for 
the  carrying  out  of  public  tasks.  Finally,  they  point  to  the  potential  for  further  improvement  in 
public spending — or rather, inversely, the scale of today’s inefficiencies — in those sectors and 
Member States where the competitive and transparent award of service concessions is not the rule. 

At the moment, the absence of clear rules at EU level and in many cases at national level governing 
the  award  of  concession  contracts  gives  rise  to  obstacles  to  the  free  provision  of  services  and 
causes  distortions  in  the  functioning  of  the  Internal  Market.56  As  a  result,  EU  citizens  do  not 
benefit  from  quality  services  at  best  prices,  economic  operators  (in  particular  SMEs)  are  being 
deprived  of  their  rights  within  the  Internal  Market  and  miss  out  on  important  business 
opportunities, and CAEs may fail to manage public resources on a sound financial basis.  

These  shortcomings  are  caused  not  only  by  legal  uncertainty  and  entry  barriers  but  also  by  a 
lack of appropriate judicial guarantees for bidders. 

The  following  considerations  apply  primarily  to  the  award  of  service  concessions  and  works 
concessions in the utilities field. 

4.1. 

LACK OF LEGAL CERTAINTY GENERATES ECONOMIC INEFFICIENCIES 

Legal certainty is essential to any economic activity and is particularly important in the context of 
long-term,  high-value  contracts  such  as  most  concessions.  However,  the  grant  of  concessions  is 
currently impaired, on the one hand by the lack of a clear and adequate definition of these contracts 
in  EU  law  and,  on  the  other  hand  by  the  imprecise  character  of  the  obligations  arising  from  the 
Treaty  principles.  These  problems  are  often  not  resolved  (and  sometimes  even  exacerbated)  by 
national regimes for awarding concessions. 

4.1.1.  Lack of clear definition of concessions  

Uncertainty with regard to the definition of concession appears already at the stage of qualification 
of a given arrangement as falling within the scope of the rules on public purchases. The distinction 
between  public  contracts  and  concessions  on  the  one  hand  and  other  types  of  agreements  or 
unilateral  acts  (such  as  licenses  and  authorisation  schemes)  on  the  other  hand,  is  unclear  and 
stakeholders (e.g. in the ports sector) reported that it is often difficult to know which legal regime 
applies to a given scheme. Furthermore, the lack of clarity stretches to certain activities carried out 
in the form of public-public cooperation.  

56  In  its  report  on  «New  developments  in  public  procurement»  the  European  Parliament  considered  that  «any 
proposal  for  a  legal  act  dealing  with  service  concessions  would  only  be  justified  with  a  view  to  remedying 
distortions  in  the  functioning  of  the  internal  market.»  see  recommendation  14,  in  European  Parliament  A7-
0000/2010. 

11

 
 
 
 
 
 
 
 
 
 
 
                                                 
The current definition makes it difficult to distinguish between concessions and public contracts. 
Out of the twenty five Court rulings on concessions since the Telaustria landmark judgment57 in 
2000,58 as many as thirteen concerned the clarification of the notion of concession. The majority of 
these  very  numerous  cases  stemmed  from  requests  by  national  courts  for  a  preliminary  review, 
reflecting their recurrent uncertainties or, sometimes, their lack of understanding of the concept of 
concessions. 

The  Commission  provided  some  clarity  in  this  respect  in  its  interpretative  Communication,59, 
explaining that the risk inherent in the exploitation of the work or service which the concessionaire 
has to bear is the essential feature of a concession. Although the case law of the Court shed some 
more light on this definition, fundamental elements, such as the level and types of risk, still remain 
unclear.60  

There  is  also  some  uncertainty  regarding  the  distinction  between  works  concessions  and  service 
concessions.61 Indeed, since most works concessions also involve, to a certain extent, the provision 
of  services,  and  as  it  is  not  always  easy  to  ascertain  what  the  main  purpose  of  the  contract  is, 
certain  works  concessions  might  be  awarded  as  service  concessions,  thus  unduly  avoiding  the 
application of the secondary rules.  

Moreover, Member States' definitions of concession do not remove the aforementioned uncertainty 
at EU level. Some of them are as unclear as the current definition in the Directive. Moreover, it is 
unclear whether those national definitions which provide additional clarification do in fact comply 
with EU law.62  

4.1.2. 

No clear obligations with respect to the award of concessions 

The legal uncertainty regarding the definition of concessions is compounded by doubts regarding 
the content and application of the obligations of transparency and non-discrimination arising from 
the  Treaty  which  guide  the  award  of  concessions.  This  problem  affects  all  types  of  concession 
when it comes to the rules regulating the award.   

Although  the  Court  confirmed  in  Telaustria  that  CAEs  which  award  concessions  are  bound  to 
comply with the fundamental rules of the Treaty, it did not sufficiently explain the content of those 

57 Case C-324/98, Telaustria [2000] ECR I-10745, where the Court stated that the contracting authorities need to 
comply with the Treaty principles of equal treatment and transparency when awarding concession contracts. 
58 Case C-324/98, Telaustria [2000] ECR I-10745, where the Court stated that the contracting authorities need to 
comply with the Treaty principles of equal treatment and transparency when awarding concession contracts. 
59  Commission  interpretative  communication  on  concessions  under  Community  law (OJ  C  121,  29.4.2000),  
pp. 2–13; point 2.1.1. 
60 This case law is still not sufficiently clear, in particular regarding the level of operating risk to be transferred to 
the economic operator so that a contract can qualify as a concession (it seems that case C-437/07, COM vs. Italy 
[2008]  I-00153  and  case  C-300/07,  Oymanns  [2009],  are  difficult  to  interpret  along  with  case  C-206/08 
Eurawasser on this particular issue). The uncertainty is increased by lingering doubts on the categories of risk 
that  can  be  transferred  to  the  concessionaire.  While  demand  risk  for  services  seems  to  be  widely  accepted  as 
relevant for the definition of a concession, there is uncertainty as to what other categories of risk (availability, 
construction,  legal  and  political,  etc.)  should  also  qualify.  See  judgment  of  the  Court  in  case  C-206/08 
Eurawasser [2009] ECR I-08377, point 79, where it ruled that «general risk resulting from amendments to the 
rules made in the course of performance of the contract cannot be taken into account». 
61  See  Case  C-331/92,  Gestion  Hotelera  Internacional  [1994]  ECR  I-01329  and  Case  C-220/05,  Jean  Auroux 
[2007] ECR I-00385, paras. 36-37. 
62 Some Member States reproduce in their national laws the definition of concession set out in the Directive (BE, 
CY, DK, EE, EL, IE, IT, , , LU, , MT, NL, AT, FI, and SE), while some others do not have any definition at all 
(DE and RO) or no definition of services concessions (BE). 

12

 
 
 
                                                 
rules. Thus it is not easy to judge the adequacy of measures aimed at ensuring compliance with the 
principles of equal treatment, non-discrimination and transparency.63 

A problem of uncertainty as to the applicable rules has also been identified in case of a contract 
modification. Many stakeholders have identified this issue as an important one. Although the case-
law  of  the  Court  applicable  to  modifications  of  public  contracts  also  applies  to  concessions,  the 
level of certainty provided by these judgments does not seem to be adequate.  

As  concession  award  regimes  in  Member  States  are  often  unclear  or  –  in  case  of  services 
concession  -  non-existent,64  the  burden  of  ensuring,  in  each  specific  case,  the  compliance  of  the 
procedures  to  be  followed  with  the  Treaty  principles  falls  on  CAEs.65  In  other  words,  CAEs  are 
faced  with  a  situation  where  they  apply  national  rules  or  ad-hoc  award  procedures  which  do  not 
necessarily meet EU Treaty standards.66 Similarly, economic operators remain uncertain about the 
legality of the procedures followed. 

4.1.3.  Consequences of lack of legal certainty on concessions 

The current situation of uncertainty at several levels is causing significant economic inefficiencies 
and is prejudicial to CAEs, economic operators and users of the services provided.  

This was confirmed by many respondents in the targeted consultations, who indicated that neither 
the Court case law nor the existing guidance by the Commission provided sufficient legal certainty 
and  that,  in  particular,  the  current  definition  of  concession  should  be  improved  by  clarifying  the 
notion of risk.67 Furthermore, as many as 27 % of the respondents to the public online consultation 
considered  they  were  unable  to  distinguish  between  public  contracts  and  concessions,  whereas  a 
further 45.9 % of respondents indicated that they were aware of cases in which public contracts had 
been wrongly qualified as concessions.68 

For  CAEs,  the  lack  of  legal  certainty  increases  the  risks  and  costs  of  cancellation  or  early 
termination of illegally awarded contracts69 70 and ultimately prevents them from using concessions 
where  this  type  of  contract  might  be  a  good  solution.  This  may  have  the  effect  of    reducing  the 
uptake of PPPs, resulting in missed opportunities for engaging private investments and know-how. 
This is particularly the case in new Member States, where uncertainty is compounded by a lack of 

63 As the Commission recalled in its interpretative communication on concessions under Community law (OJ C 
121, 29.4.2000), ‘this principle (of equal treatment) requires that all offers conform to the tender specifications to 
guarantee  an  objective  comparison  between  offers  and,  on  the  other  hand,  this  principle  is  violated,  and 
transparency of the procedure impaired, when an awarding entity takes account of changes to the initial offers of 
one tenderer who thereby obtains an advantage over his competitors’. 
64 This is the case in AT, BE, CY,  DE, EL, LU, MT, NL, SL and UK. 
65 As an example, German public procurement law does not contain provisions relating to the award of services 
concessions.  This  means  that  a  number  of  service  concessions,  in  particular  at  municipal  level,  are  subject  to 
unclear rules and legal uncertainty for both the public and the private sector partners See PwC study, page 66. 
66 For example in Portugal, it is possible to award directly concessions of public service "for relevant reasons of 
public interest "  
67 See Annex I B, p.2, 5. 
68 In its contribution to the targeted consultation the Institut d’Experts Juridiques Internationaux argues that the 
overlapping of [EU] definitions [of public contracts and concessions] leads to risks of re-qualification of the 
contract awarded and that the present blurring [between these two notions] makes it tempting to circumvent 
the award procedures. 

69 The Court ruled in Case C-503/04, Bockhorn/Braunschweig, that a contract awarded in breach of EU law must 
be terminated (point 33). 
70 See «European PPP Report» (2009), page 19. 

13

 
 
 
                                                 
experience. Indeed, CAEs may often prefer to remain within the framework of the direct provision 
of services, rather than confer these activities to a private operator on the basis of a concession. 

As  regards  economic  inefficiencies  caused  by  the  non-externalisation  of  certain  tasks,  as 
demonstrated  by  the  OECD  study,  the  estimated  cost  savings  generated  by  the  application  of 
competitive tendering range from 10 % to 30 %. This gives an idea of the potential losses due to the 
inappropriate choice of organisational arrangements for the provision of public services.71   

Moreover, economic operators may be less inclined to engage in projects which could turn out to 
have  been  tendered  in  violation  of  EU  law.  They  may  not  be  certain  about  the  standards  of 
transparency and equal treatment which apply during the award procedure.72 In the long term, legal 
uncertainty  and  the  resulting  arbitrariness  of  CAEs  may  permanently  discourage  some  economic 
operators  from  participating  in  expensive  tendering  procedures,  which  could  provoke  further 
efficiency  losses.73  Legal  risks  also  translate  into  additional  costs  (i.a.  cost  of  credit74  75)  and 
ultimately  lead  to  less  favourable  conditions  for  CAEs  and  users.  Operators  may  hesitate  to 
participate when the procedure might be cancelled or re-qualified as a public contract at anytime. 

The  negative  consequences  of  unclear  rules  have  been  confirmed  by  economic  operators 
responding to the targeted consultations, who declared that they were ‘looking for their own advice 
and  information’  with  regard  to  applicable  rules,  given  the  deficiencies  in  the  current  legal 
framework.76 

Several  SME  respondents  to  the  targeted  consultation  considered  that  unclear  rules  at  EU  level 
increase  the  cost  of  legal  advice,  as  well  as  the  cost  of  searching  for  information  on  contract 
opportunities.77  

Legal  uncertainty  is  also  a  factor  in  the  sub-optimal  use  of  EU  funds  in  relation  to  concessions, 
contributing to a low uptake of concessions in the new Member States.78 This has been confirmed 

71 This means that wider use of concessions in the future has the potential to generate a higher rate of savings 
than the € 2 billion per year referred to in footnote 123. See also «Competition and Efficiency in Publicly Funded 
Services», by Jens Lunsdgaard, box 1, page 7, OECD Economics Department Working Paper, 2002. 
72 Indeed, stakeholders criticised excessive procedural discretion granted to CAEs when applying EU Treaty 
principles Annex I A, Annex I B http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm. 
73  ‘Opening  the  public  sector  to  SMEs  in  the  Alpine  Space.  Coping  with  the  difficulties  encountered  by  SMEs 
when tendering abroad’. Abstract of the SWOT analysis conducted by the ALPPS (Alpine Public Procurement 
Services) — April 2005, available at http://www.alpps-online.com/ALPPS-Ang.pdf. 
74 This is the case, in particular, where the right to exploit the assets is the sole or main guarantee for the credits 
granted to the concession holder. In a recent complaint received by the Commission departments, an excessively 
long award procedure due to existing legal uncertainties led to the conversion of the funding Bank’s guarantee 
on the assets into full ownership of the said assets. This question (cost of credit) is particularly important in the 
context of the current economic crisis and the ensuing acute liquidity shortage where many lending institutions 
have withdrawn from the PPP market, thus reducing competition among the remaining funders and increasing 
the cost of financing. 
75  When  funding  results  from  an  EIB  loan,  non-compliance  with  EU  law  always  leads  to  the  rejection  of  the 
application or the full withdrawal of the Bank from the financial operation. These cases are not publicly reported, 
which means information is not publicly available. 
76 See Annex I B, http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm. 
77 See Annex I B, p.2,. 
78 In its «Guidelines for successful Public-Private Partnerships (2003), the Commission (DG REGIO) defines as 
a  key  requirement  on  Commission  financing  the  condition  that  «PPPs  should  not  impact  negatively  on  the 
operation of open markets nor on the clear transparent rules of these markets.» see page 8. This means that legal 
uncertainty as to the applicable procurement rules on the award of concessions clearly affects the combination of 
EU  funds  with  this  type  of  arrangement.    See  also  Commission’s  Communication  on  «Mobilising  private  and 
public  investment  for  recovery  and  long  term  structural  change:  developing  Public  Private  Partnerships» 

14

 
 
                                                 
during  several  bilateral  meetings  with  national  authorities.  As  an  example,  both  the  CSES  study 
and the interviews with Member States confirmed that the lack of legal certainty is a major factor 
determining the lack of development of concessions in the Czech Republic. This was also raised as 
a problem in Estonia.   

As an illustration of the above, the European Association of tolled motorways, bridges and tunnels 
concessionaires  (ASECAP)  considered  that  many  Member  States  do  not  yet  have  clear  public 
sector  rules;  recent  examples  prove  that  the  EC  could  act  to  prevent  the  uncertainty  that 
undermines future initiatives. By favouring legal clarity, the EU can bring leverage/sponsorship to 
foster the political readiness of Member States to adopt a «PPP agenda» and explore more efficient 
ways of developing infrastructure.79  

4.2.  ENTRY BARRIERS  

In  many  Member  States  concession  markets  remain  predominantly  national,  with  a  limited 
presence  of  companies  originating  in  other  EU  Member  States.80  Entry  barriers  stem  from 
divergent  national  legal  regimes  for  the  award  of  concessions,  as  well  as  from  inappropriate  or 
even unlawful practices of the national awarding authorities.  

4.2.1. Barriers stemming from the divergence of national legal regimes  

Divergent  national  legal  frameworks  on  concessions  deter  non-domestic  EU  operators  from 
entering national markets.   

Identified divergence of regimes concerns:  

-  the  definition  of  concession,  whereby  economic  operators  have  to  contend  with  a 
complex pattern of setups considered to be concessions in different Member States (e.g. 
administrative  authorisations  or  licences)81  and  contracts  qualifying  as  concessions 
under EU law but not considered as such by national legislators; 

-  publication  standards82  where,  as  a  result  of  different  national  frameworks, 
concessions of the same type and importance are being published at different levels in 
different Member States and even within the same Member State (e.g. in a local or trade 
newspaper,  on  the  contracting  entity’s  website,  in  the  official  journal  or  even  in  the 
OJEU); 83 84 85 

COM(2009) 615 final of 19.11.2009, para. 3.3, opinion of DG REGIO within the context of the steering group 
and Report on Green Paper on PPPs, page 12. 
79 See ASECAP’s presentation to EPEC’s Private sector forum (2010), entitled «Leveraging EU grants: the case 
for PPPs». 
80 See, e.g., data reported in ‘A Practical Guide to PPP in Europe’, City and Financial Publishing, 2006, or in 
‘PPP in Europe 2006’, Linklaters, 2006. 
81  This  is  the  case  of  a  German  notion  of  ‘Konzession’.  Licences  or  authorisations  are  acts  whereby  a  public 
authority authorises the exercise of an economic activity. While certain conditions for carrying out the activity 
usually need to be met by the licensee, or he might have been assigned certain public service obligations linked 
to the licensed activity, the authorisation does not principally aim at assigning a given public task to the licensee. 
82  The  obligation  to  publish  a  contract  notice  in  the  OJEU  applies  only  to  works  concessions  covered  by 
Directive 2004/18/EC. 
83 As already mentioned, a group of MS do not have any provisions on this subject (see footnote 64). 
84  Some  Member  States  have  provisions  on  this  matter  meeting  high  levels  of  transparency,  where  the 
notification is supposed to take place at national and, in some cases, EU level. This is the case of BG, CZ, DK, 
EE, ES, FR, LV, LT, PL, PT, RO, SK, FI and SE. 

15

 
 
 
 
 
                                                                                                                                                         
- award procedures86 which are either regulated in detail87 or covered by very limited 
provisions.88  Substantial  differences  also  exist  between  requirements  and  practices 
related to selection criteria, technical specifications and award criteria.89 

Where operators are faced with fragmented national frameworks, they have either to invest heavily 
in a learning process about national rules and procedures (with costs multiplying in line with the 
number  of  Member  States  involved  and  often  being  prohibitive,  in  particular  for  SMEs)  or  to 
simply forego existing business opportunities. Any investment opportunities available are therefore 
most  likely  to  be  exploited  by  a  limited  number  of  large  EU  companies  which  are  currently  the 
only ones with the financial resources to meet the extensive costs involved.90 Indeed, the existence 
of  entry  barriers  was  confirmed  by  a  number  of  stakeholders  during  the  targeted  consultation: 
overall,  as  many  as  41 %  of  the  undertakings  that  provided  a  response  to  the  relevant  question 
confirmed the existence of entry barriers.91  

4.2.2.  Barriers stemming from unlawful practices  

Barriers  stemming  from  a  divergence  of  national  regimes  are  made  worse  by  the  often  unlawful 
practices of CAEs due to the lack of clarity of EU rules. 

One of the fundamental problems in this regard is the direct award of a concession contract with a 
cross-border  interest.  Direct  awards  originate  from  inadequate  application  of  the  principle  of 
transparency,  either  by  national  lawmakers  or  by  CAEs.  This  concerns,  in  particular,  Member 
States  that  do  not  regulate  the  award  of  concessions  but  it  also  often  concerns  Member  States 
where  the  award  is  governed  by  national  rules.92  Direct  awards  have  particularly  negative 
consequences for the proper functioning of the Internal Market (as described in the next section). 
This applies to concession contracts which are often extended or renewed without any competition 
or transparency.  

As  many  as  37%  of  the  respondents  to  the  online  consultation  declared  they  were  aware  of 
concessions  being  awarded  without  any  publication  or  transparency,  in  particular  in  the  water 
distribution and waste water, waste treatment and energy sectors. Similarly, an important number 
of undertakings questioned in the context of the targeted consultation of the business community 
(44 %  of  those  who  answered  the  relevant  question)  confirmed  that  they  were  aware  of  such 
awards,  often  quoting  specific  cases.  With  reference  to  the  port  sector,  where  concessions  are 
widespread,  the  results  from  a  survey  conducted  by  the  Institute  of  Transport  and  Maritime 

85  In  some  other  Member  States,  national  law  provides  for  less  ambitious  publication  requirements,  e.g.  in 
national  newspapers  instead  of  the  national  official  journal  (HU  –  for  certain  sectors),  reasonable  degree  of 
publicity (AT).  
86 Again, in some Member States, no provisions of the sort exist (see footnote 64). 
87 This is the case in BG, CZ, ES, FR, LV, LT, HU, PL, PT, RO. 
88 IE and AT in particular. 
89 See Annex II. 
90 See PwC study, pp. 148-149. 
91 See Annex I B, p.2. 
92 According to the College of Europe study, in Italy «CAEs awarding public service concessions often do not 
publish contract notices at all, but invite those economic operators to the informal tender which are included in 
their «official list» of trustful service providers for the specific sector concerned or have been identified by the 
means  of  call  for  interest.»  (final  report  for  Italy,  page  2).  In  its  reply  to  the  targeted  consultation  the  Institut 
d’Experts Judiriques Internationaux considers that the practice of direct awards of concessions is provided for in 
most  national  legal  systems.  This  stakeholder  claims  that  such  practice  is  rather  exceptional  in  France  but 
nevertheless refers to a case of a direct award (based on an unsolicited offer) relating to the highway A86 in the 
Parisian region. 

16

 
 
 
                                                                                                                                                         
Management and the University of Antwerp for the European Seaport Organisation (ESPO) show 
that 14 % of the respondents declared they had directly awarded contracts for port services.93   

Another unlawful practice concerns the award of public contracts94 in accordance with lenient rules 
applicable to concessions (undermining the effectiveness of Public Procurement rules).95 On other 
occasions  concessions  are  granted  as  licences  or  authorisations  (usually  encompassing  exclusive 
rights) in breach of the Treaty principles.96  

Finally, the consultations indicate that the lack of clear rules also leads to the unlawful use of non-
objective selection and award criteria.97 This is the case when objectives unrelated to the subject 
mater of the contract are included in the evaluation of the best offer. For instance, CAEs may want 
to take into account tenderers' social commitments not related to the subject matter of the contract 
or relations of trust with one of the bidders. Non-objective and discriminatory criteria undermine 
the fairness of the award. The same can be said about discretion in setting selection criteria, which 
may  lead  to  some  certain  companies  being  disadvantaged.  This  problem  concerns  SMEs  in 
particular, which appear to be reduced largely to the role of sub-contractors.98  

The problems outlined above primarily concern service concessions and works concessions in the 
Utilities sector, as the existing provisions on works concessions in the Classic Directive cover the 
issues  of  publication.  By  contrast,  the  problems  related  to  the  misapplication  of  the  Treaty 
principles at later stages of the award procedure may also concern works concessions, although to a 
lesser extent. 

4.2.3.  Consequences of entry barriers  

Entry  barriers  hinder  the  access  of  EU  operators  to  concession  markets.  Economic  operators  are 
faced  with  different  levels  of  transparency,  resulting  in  an  unlevel  playing  field  and  often 
translating into lost opportunities to seek contracts. They generate costs related to legal advice and 

93  Among  the  sectors  concerned,  port  services  and  waste  treatment,  but  also  water  distribution,  waste  water  & 
sewage, transport, energy, car parking and airport services seemed to be particularly affected by this practice; for 
data quoted in this paragraph see Annex I A and B, p.2. 
94 Case, C-300/07 Oymanns, OJEU, C-180/4, 01.08.2009. 
95During  the  online  Public  consultation  45.9 %  of  the  respondents  indicated  that  they  were  aware  of  public 
contracts  being  awarded  as  concessions,  but  a  further  27 %  admitted  it  was  difficult  for  them  to  distinguish 
between a public contract and a concession (the latter percentage was even higher among economic operators, 
public administrations and professional associations, 28 % of which found it difficult to distinguish between the 
2 concepts). There are indications that this may be a common occurrence at  municipal level, see CSES study, 
page 47. 
96 This means that a concession contract is wrongly qualified as a unilateral act and may be granted without a 
competitive  procedure.  Although  the  Court  made  it  clear  that  the  granting  of  a  licence  encompassing  an 
exclusive  right  had  to  comply  with  the  principles  of  equal  treatment  and  transparency  (see  Case  C-203/08, 
Betfair) it also acknowledged the existence of quite a wide derogation from these principles, excluding from this 
transparency obligation licences granted to (1) public operator subject to direct State supervision or (2) private 
operators subject to strict control by the public authorities.» see case above, point 59. 
97 Under the Directive, qualification criteria need to relate to technical, economic and financial capacity, whereas 
award criteria relate to price or the economically most advantageous tender. These requirements do not concern 
either  work  or  service  concessions.  Meanwhile  in  France,  until  recently  the  award  was  to  a  large  extent 
dependent on the «intuitu personae» or the relation of personal trust between the contracting authority and the 
concessionaire. In Lithuania, the «effect of the tender on the social and economic development of the country or 
an  appropriate  region»  may  be  used  as  an  award  criterion  which  may  give  rise,  in  view  of  its  wide  scope,  to 
possible discrimination. 
98 Report on the Public Consultation on the Green Paper on PPP and Community law on public contracts and 
concessions, SEC(2005) 629 of 3.5.2005, p. 11. 

17

 
 
 
 
 
 
                                                 
the  need  to  acquire  in-depth  knowledge  of  specific  local  conditions.  Divergent  national  rules  on 
concession  contracts,  which  create  barriers  to  the  entry  into  the  markets  of  Member  States  (in 
particular  for  SME’s)  or  delay  their  entry,  put  incumbent  national  players  at  a  significant 
advantage. The market stays fragmented and the rate of cross-border provision of services remains 
limited.99  

The  PwC  Study  confirms  that  a  significant  proportion  of  the  major  public  procurement  projects 
seem  to  be  de  facto  excluded  from  the  full  benefit  of  the  Internal  Market,  as  most  of  the 
participants  and  awardees  are  either  national  companies  or  locally  represented  large  foreign 
enterprises.100 In the online consultation 32.4 % of the respondents also considered that diverging 
national  legal  provisions  and  practices  governing  the  award  of  works  concessions  and  service 
concessions constitute an obstacle to the cross-border award of this type of contract. These findings 
have been confirmed by several respondents to the targeted consultation.  

Unlike  for  some  large  companies  with  experience in  concessions  and  present  in  several  Member 
States,  access  to  information  on  concession  opportunities  is  particularly  costly  for  SMEs,  which 
lack the financial means to obtain the necessary information. As pointed out by one of the SMEs 
during  the  targeted  consultation,  ‘as  awarding  authorities  are  not  obliged  to  publish  the  contract 
notice on the OJEU, companies based in other Member States do encounter difficulties in obtaining 
information on the service to be awarded’.101 Besides the prejudice to competitors located in other 
Member States, CAEs and consumers also stand to lose since they do not get value for money.102 

As a result of direct awards many European economic operators potentially interested in bidding 
for  concession  contracts  are  denied  the  opportunity  to  do  so  and  thus  cannot  enter  the  market. 
Direct  awards  lead  to  foreclosure  of  the  market  (based  on  discrimination  of  competitors)  and 
generate considerable inefficiencies corresponding to the difference between the price of the award 
and the market price.  

In  addition,  the  award  of  public  contracts  as  concessions  reduces  or  even  eliminates  the 
competition for contracts and effectively undermines the chances of achieving the best outcome on 
procured services for both CAEs and consumers. All the problems described above related to the 
consequences  of  insufficient  transparency  and  fairness  in  the  award  of  concessions  are  therefore 
extended to these contracts. 103   

There is also evidence (with regard to the port sector, for instance) that the granting of concessions 
as  licences  or  authorisations  under  conditions  of  inexistent  or  insufficient  competition  leads  to 
higher prices and reduced quality of the services provided to contracting authorities and consumers 
while excluding economic operators from the relevant markets.  

4.3.  INSUFFICIENT LEGAL PROTECTION OF TENDERERS 

Pursuant to Article 47 of the Charter of Fundamental Rights of the EU, anyone whose rights and 
freedoms  guaranteed  by  the  law  of  the  Union  are  violated  has  the  right  to  an  effective  remedy. 

99 See PwC study, p. 58. 
100 See PwC study, pp. 148-149. 
101 See website http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm. 
102 See «The Role of Transparency in Preventing Corruption in Public Procurement: Issues for Consideration» by 
János Bertók, published in «Fighting Corruption and promoting integrity in public procurement» / OECD, 2005, 
p. 86. 
103 See footnote 89 above. 

18

 
 
 
                                                 
However,  this  right  is  not  fully  ensured  to  tenderers  participating  in  procedures  for  the  award  of 
concessions. 

Concessions falling outside of the scope of the Classic Directive are not covered by the Remedies 
Directive.  Hence,  tenderers  do  not  benefit  from  an  adequate  system  guaranteeing  effective 
enforcement of EU Treaty principles. Although some Member States (such as France, Portugal and 
Romania) extended the application of the Remedies Directive to service concessions, a number of 
other (Germany, UK, Sweden and Netherlands, for instance) have not done so.104 In all, 24.9 % of 
the  respondents  to  the  online  consultation  considered  that  national  rules  did  not  offer  effective 
remedies to all parties wishing to challenge decisions awarding service concessions. 

It  follows  that  some  important  guarantees  provided  for  by  the  Remedies  Directive  (such  as  the 
obligation  to  abstain  from  concluding  a  contract  before  the  expiry  of  the  standstill  period  or  the 
conditions for ineffectiveness of concessions awarded directly) are not available in many Member 
States. As a result, potential violation of the EU Treaty principles cannot be adequately tackled by 
the aggrieved economic operators. Moreover, any arbitrariness of CAEs enjoying wide discretion 
throughout  the  tendering  process  escapes  effective  scrutiny.  Taking  into  account  the  number  of 
concessions  reported  to  be  either  awarded  directly  or  tendered  according  to  inadequate 
standards,105  this  may  effectively  lead  to  a  continuous  failure  to  redress  national  situations  of 
deficiency or non-compliance with the application of the Treaty principles. 

5. 

BASE LINE SCENARIO  

If  no  action  is  taken  to  address  the  status  quo,  the  economic  inefficiencies  brought  about  by  the 
legal uncertainty and the existing entry barriers to EU concession markets will persist and might 
even get worse. The use of concessions will continue to be hindered by legal and economic risks, 
undermining innovation and competitive pressures, in particular those which arise as new players 
emerge.106  This  problem  will  be  the  most  prevalent  in  those  Member  States  where  no  rules,  or 
unclear  rules,  apply  to  awarding  concessions  but  also,  to  some  extent,  in  Member  States  where 
concessions are already regulated.107  

As a consequence of legal uncertainty, those Member States which have limited or no experience 
of  concessions  and  which  refrain  from  resorting  to  these  arrangements  in  view  of  perceived  and 
existing risks and related costs will most likely continue in the same vein. By not engaging in PPPs 
they miss out on opportunities to use concessions where they would be the most efficient mode of 
delivering  public  tasks.108  CAEs  may  continue  to  provide  services  directly,  even  in  cases  where 

104  In  relation  to  Germany,  PwC  reported  that  German  procurement  chambers  have  rejected  applications  for 
review  regarding  services  concessions  while  referring  to  the  decisions  of  the  Court  of  Justice  of  the  EU  and 
confirmed that CAEs have to adhere to the basic principles of the Treaty; See PwC study, page 68. 
105 With reference to the port sector, where concessions are prevalent, the results from a survey conducted by the 
Institute  of  Transport  and  Maritime  Management  and  the  University  of  Antwerp  for  the  European  Seaport 
Organisation  (ESPO)  show  that  14 %  of  the  respondents  declared  that  they  had  directly  awarded  contracts  for 
port  services  and  12 %  awarded  the  contracts  through  a  process  of  private  and  bilateral  negotiations  from  a 
qualified pool of market players, see «The awarding of seaport terminals in Europe» final draft 28 May 2008, 
page 11. 
106 See CSES study, pp. 109 and 142. 
107 Failure to develop an EU-wide concession market means that concessions awarded in those Member States 
will face less competition than they would otherwise. 
108 A recent report on PPPs conducted by the consultant Arcturus Group states that «Le cadre juridique des PPP 
reste inexistant et leur statut est flou: la situation actuelle repose sur la jurisprudence (notamment l’arrêt «Stadt 

19

 
 
 
 
 
                                                 
externalisation would appear to be a preferable solution. This would contribute to underinvestment 
in  many  public  services  which  already  today  are  obsolete  and  costly  for  the  public  purse.  In  a 
context of increasing budgetary constraints such problems might be aggravated.  

In  those  Member  States  where  CAEs  will  nonetheless  decide  to  resort  to  concessions  for 
modernising  services  and  infrastructures,  economic  operators  might  still  approach  concession 
award procedures with mistrust. Furthermore, as the existing legal barriers will not be addressed, a 
substantial  number  of  EU  economic  operators  will  not  be  aware  of  many  of  the  economic 
opportunities related to concessions and may decide not to bid for contracts, discouraged by real or 
perceived lack of equal treatment. 

Within  the  current  framework,  the  use  of  EU  structural  and  cohesion  funds  in  association  with 
concession  contracts  and  PPPs  is  likely  to  remain  sub-optimal,  without  the  multiplying  effect  of 
private  investment.  This  may  have  an  impact  on  Member  States’  capacities  to  negotiate  and 
achieve  balanced  contractual  relations  with  private  operators,  which  could  affect  the  long-term 
sustainability of EU co-financed infrastructures.109  

Finally,  for  ordinary  public  contracts,  significant  use  may  still  be  made  of  less  detailed  and  less 
restrictive concession-type procurement rules. This will also help to restrict economic opportunities 
to EU operators with regard to public contracts and in addition will undermine the effectiveness of 
Public Procurement Directives. 

On the other hand, the continuation of the current situation is likely to benefit certain stakeholders. 
Incumbent operators in particular might benefit from better opportunities to secure the extension of 
current contracts, given the lack of precise rules and weak competition.  

6. 

SUBSIDIARITY 

Although  the  aforementioned  problems  have  an  effect  at  national  level,  they  also  fundamentally 
affect the efficient functioning of the EU Internal Market, in view of the absence of a level playing 
field.  

Until  now  most  of  the  Member  States  have  not  uniformly  interpreted,  sufficiently  clarified  or 
implemented the relevant Treaty principles for the correct attribution of concessions contracts. The 
ensuing  lack  of  legal  certainty  and  foreclosure  of  markets  is  unlikely  to  be  eliminated  without 
intervention  at  the  appropriate  level.  Even  if  Member  States  were  to  take  legislative  action  to 
establish a legal framework based on the Treaty principles of transparency and equal treatment at 
national level, at least two problems would remain unresolved:  the risk of legal uncertainty related 
to  interpretations  of  those  principles  by  national  rules  and  the  risk  of  wide  disparities  among 
legislations  in  different  Member  States,  resulting  from  the  lack  of  precision  of  applicable  EU 
standards.   

Hence,  in  order  to  eliminate  discrepancies  among  national  regimes  and  ensure  homogenous 
understanding of the Treaty principles across Member States, it appears that these principles must 

Halle).  Un  cadre  réglementaire  adapté  est  de  plus  en  plus  demandé  par  les  nouveaux  États  membres  qui 
souhaitent utiliser cet outil avec une certaine sécurité juridique, notamment, au regard de l’attribution des fonds 
structurels  dans  ce  cadre.»,  see  report  on  «L’avenir  des  partenariats  public  privés  (ppp)  au  sein  de  l’Union 
Européenne», Arcturus Group, note de synthèse, page 17. This information has also been confirmed in bilateral 
meetings with Member States' representatives in particular from Estonia and the Czech Republic. 
109 See footnote 71 above. 

20

 
 
 
 
  
 
 
 
 
 
                                                                                                                                                         
be  given  concrete  expression  and  translated  into  EU  secondary  legislation.  This  will  help  to 
achieve  a  working  Internal  Market  on  concessions  which  ensures  equal  opportunities  for  all  EU 
economic  operators  and  fosters  competition  for  those  contracts.  EU  intervention  is  therefore  the 
most  appropriate  way  to  overcome  existing  barriers  to  the  EU-wide  concession  market  and  to 
ensure convergence and a level playing field in the EU, ultimately guaranteeing the free movement 
of goods and services in 27 Member States.  

This  is  already  the  case  today  for  works  concessions  (with  the  exception  of  the  utilities  sector), 
which  are  subject  to  some  provisions  of  EU  secondary  legislation,  as  well  as  public  contracts, 
which are fully covered by secondary legislation.  

Secondary rules in the field of public procurement improve efficiency and specify the obligations 
derived from the application of the fundamental freedoms, of which the most important are the free 
movement of goods and services and the right of establishment. Pursuant to Article 114 TFEU, the 
European Union « adopts the measures for the approximation of the provisions laid down by law, 
regulation or administrative action in Member States which have as their object the establishment 
and functioning of the Internal Market». Moreover, whenever the EU legislates in the field of the 
right of establishment and free movement of services, it must ground its action in the provisions of 
Article  53(1)  and  62  TFEU.  The  aforementioned  provisions  restrict  the  choice  of  the  European 
lawmaker  to  directives  as  the  only  possible  legal  instrument  to  coordinate  national  legislations 
facilitating the establishment of economic operators and their access to the services market. As the 
objective  of  the  present  initiative  is  to  ensure  non-discriminatory  access  to  the  market  of 
concessions,  the  combined  legal  basis  of  Articles  114,  53.1  and  62  of  the  Treaty  is  therefore 
adequate.  

7.  OBJECTIVES  

7.1. 

 GENERAL OBJECTIVES 

The overall objectives of the present initiative are to contribute to economic growth and innovation 
through the creation of a supportive framework for a wider use of concessions. 

7.2. 

SPECIFIC OBJECTIVES  

• 
Better value for money for both CAEs and users, to create more business opportunities 
for  EU  companies  and  to  foster  innovation  through  increased  competition  for  the  award  of 
concessions. 

• 
quality strategic services to the public.   

To facilitate investments, in particular on infrastructure projects and on the provision of 

7.3.  OPERATIONAL OBJECTIVES 

• 
procedure.  

To improve legal certainty with regard to the definition of concessions and their award 

• 
procedures for the award of concession contracts.  

To  reduce  entry  barriers  caused  by  divergent  national  rules  and  inappropriate 

• 

To improve the legal protection of tenderers.  

21

 
 
 
 
 
 
 
 
 
 
 
 
 
 
8.  POLICY OPTIONS  

The  Commission  departments  have  analysed  different  policy  options  aimed  at  meeting  the 
objectives set out in the previous section. 

1.  No policy change 

2.  Focused infringement policy 

3.  Soft law 

4.  Legislation — Basic rules 

5.  Legislation — Detailed rules 

6.  Legislation — Mixed rules 
(Basic rules + ) 

Only the legislative options will be subject to a detailed analysis since, as will be explained below, 
neither the focused infringement policy nor the soft law option seems adequate to accomplish the 
above mentioned objectives fully.  

8.1. 

NO POLICY CHANGE (OPTION 1)  

The points made with regard to the Baseline Scenario apply with respect to this option. 

8.2. 

FOCUSED INFRINGEMENT POLICY (OPTION 2) 

This  option  would  consist  in  increased  and  more  systematic  use  of  the  infringement  procedure 
under  Article  258  of  the  TFEU  to  address  cases  of  violation  of  the  Treaty  principles  during  the 
award of concessions, in particular service concessions.  

This  might  encourage  CAEs  to  abandon  some  practices  which  are  clearly  not  in  line  with  the 
Treaty principles. It might also, to a certain extent, improve information on concession contracts in 
the EU and increase the fairness of the award procedures. It might also provide the Court with the 
necessary opportunities gradually to clarify the definition of concession as well as the rules on the 
publication of concession notices and on the  organisation of award procedures.  

However, the hypothetical positive effects of such a policy can only be expected in the long term. 
Moreover, the legal uncertainty could even temporarily increase, as CAEs would be aware of the 
risk of Commission intervention without having the necessary tools to ensure compliance with EU 
law. This option would also be of little help in reducing costs for companies operating cross-border 
(in  particular  SMEs),  as  it  would  not  result  in  any  coordination  of  rules  on  award  procedures 
throughout the EU or on the availability of adequate remedies. 

Hence the effects expected  from this  option do not correspond to the objectives of the  initiative. 
Indeed, this option would neither guarantee legal protection nor ensure legal certainty.   

This option is hereby discarded without further analysis of its impact. 

22

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
8.3. 

SOFT LAW (OPTION 3) 

The soft law option would consist in either an interpretative communication of the Commission or 
a recommendation.  

A communication would state the Commission’s understanding of the applicable EU law and the 
Court’s case law on concessions, but would not establish new rules. This clarification of the Treaty 
principles would commit the Commission only and would not bind third parties. Already in 2000 
and  2008,  the  Commission  adopted  communications  on  concession  contracts.  Neither  of  these 
Communications has done much to improve the persisting situation of legal uncertainty or tackled 
existing  entry  barriers  in  Member  States  to  the  award  of  concessions.  There  are  therefore  few 
grounds for believing that a more in-depth explanation would substantially alter the behaviour of 
CAEs. 

A  new  communication  could  probably  raise  awareness  of  the  case  law  of  the  Court  among 
stakeholders.  However,  according  to  the  results  of  the  consultations,  most  stakeholders  were 
already aware of the relevant jurisprudence, although they often showed a lack of understanding of 
specific decisions in their responses.110 Furthermore, as the case law of the Court has not developed 
significantly since the adoption of the abovementioned Ccmmunications and still does not cover all 
relevant  aspects  of  the  award  of  concessions,  a  new  communication  would  not  introduce  new 
clarifications of substance. 

In addition, a communication would be unlikely to improve information on concession contracts in 
the EU. More CAEs would probably become aware of the obligation to publish a concession notice 
but, as a communication cannot spell out all the relevant conditions of such publication, ‘adequate 
advertisement’ would not be ensured and publication in the OJEU would not be guaranteed.  
With regard to improving the legal protection of tenderers, a communication could only emphasise 
that remedies with respect to concession contracts must not be less efficient than those applying to 
similar claims based on domestic law and must not make it impossible or excessively difficult in 
practice  to  obtain  judicial  protection.  This  could  have  a  positive  impact  but  would  fall  short  of 
ensuring the rights of unsuccessful tenderers provided explicitly under the Remedies Directive or 
recognised by the Court. Therefore, the overall level of legal protection would not increase. 

Most  importantly,  a  communication  would  not  be  binding  on  public  entities.  As  a  result,  CAEs 
adhering to its terms could still not be sure that a national court would not find a procedure illegal 
and cancel it or order damages to be awarded. Similarly, tenderers would still be uncertain about 
the CAEs' compliance with the interpretation provided in the communication. For these reasons, a 
communication would also fail to address the problem of legal barriers and costs.  

A recommendation would have similar content to a communication and would essentially produce 
a similar effect because of its non-biding nature. Thus, the observations made with reference to the 
communication also apply, with the necessary adjustments, to this soft law instrument.  

On  these  grounds,  it  would  appear  that  a  communication  or  a  recommendation  would  not  fully 
achieve the operational objectives of the initiative.  

110 For example, some respondents referred to a definition of concessions which was clearly erroneous. National 
traditions  seemed  to  play  a  crucial  role  in  their  interpretation  of  the  notion  of  concession:  e.g.  some  French 
stakeholders believed  that  the  criteria  for distinguishing public  contracts  from  concessions  included  the  global 
nature  of  the  devolution  of  tasks  or  the  length  of  a  contract,  whereas  ECJ  case  law  leaves  no  doubt  on  this 
particular point, clearly referring to the transfer of risk as the ultimate criterion. 

23

 
 
 
 
 
 
 
 
 
                                                 
This option is therefore discarded without further analysis of its impact.  

8.4. 

LEGISLATION — CONTENT OF THE OPTIONS 

There  are  two  extreme  legislative  options:  Basic  rules  corresponding  to  existing  provisions  for 
works  concessions  of  Directive  2004/18/EC  or  Detailed  rules  based  on  the  current  legal 
framework for public contracts. The third option, Mixed rules, amounts to a compromise between 
the two in which the Basic rules are complemented with certain solutions inspired by the Detailed 
rules. The exact scope of each option is discussed further in Section 9. 

Table 4 — options content  

PROVISIONS 

BASIC RULES 

DETAILED RULES 

MIXED RULES 

Definition of concessions 
Publication in the OJEU 
Deadline for applications 
Remedies 
Selection criteria 
Technical specifications 
Publication of contract award 
notices 
Rules on public-public: 
Rules on modifications 
Rules on governance 
General requirements on the 
suitability of tenderers, on equal 
treatment during award procedures 
and on award criteria as deduced 
from the Court’s case law. 
Award criteria 
Mandatory award procedures 
Duration 

X 
X 
X 
X 

X 
X 

X 
X 
X 
X 

X 
X 
X 

X 
X 

X 

X 
X 

X 
X 

X 

X 
X 
This issue is not directly concerned by rules on award procedures; rather 
it  relates  to  the  content  of  the  contract  and  the  adequacy  of  the  time 
needed  for  the  recovery  of  the  investments.  Hence,  it  shall  not  be 
included in the present assessment. 

8.5. 

LEGAL INSTRUMENT 

As explained in Section 6, this initiative, should be based not only on  Article 114 TFEU but also 
on Articles 53(1) and 62 TFUE, providing a specific legal basis for the coordination of legislation 
conditioning  access  to  establishment  and  services  markets.  These  provisions  specifically  require 
the use of a directive as the only possible legal instrument.  

Due to the nature of the envisaged rules, a single directive will permit to regulate both classic and 
utilities sector.  

24

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
9. 

IMPACT ANALYSIS OF THE LEGISLATIVE OPTIONS  

9.1. 

SCOPE OF LEGISLATION 

9.1.1. 

Utilities sector 

The Utilities Directive covers important sectors such as water, ports, airports, energy and heating. 
These  sectors  are  characterised  by  a  significant  number  of  concessions,111  but  even  works 
concessions are at present excluded from the scope of application of this Directive. This situation 
appears  unjustified.  Both  the  contracting  authorities  and  other  CAEs  in  the  Utilities  sectors  are 
bound  to  apply  Treaty  principles  with  regard  to  concessions.  Consequently,  when  dealing  with 
concessions in these sectors, they encounter the abovementioned problems relating to the imperfect 
application  of  the  Treaty,  lack  of  legal  certainty  and  barriers  to  entry.  If  works  and  service 
concessions were to be covered by the classic Directive but utilities remained outside its scope, this 
would add yet another level of legal uncertainty regarding which set of rules apply. For example, 
concessions  are  often  awarded  by  local  authorities,  and  these  authorities  may  be  subject  to  both 
sets of rules. Economic operators might thus find it hard to understand that a service concession for 
running a municipal car park would be subject to procurement rules, whereas a concession awarded 
by the same local authority for running the entire water supply system would not. That is why one 
directive on concessions will cover both utilities and classic sectors.   

9.1.2. 

Priority and non-priority services 

Non-priority  services  (e.g.  port  services,  catering,  health,  education  and  social  services)  are  at 
present  only  partially  covered  by  the  Public  Procurement  Directives.  The  intention  of  the 
legislator  was  that  certain  specific  service  contracts,  which  were  considered  not  to  have  much 
potential for cross-border trade, should be excluded from the full application of the rules of the 
Directives,  for  a  transitional  period.  However,  in  the  light  of  the  recent  findings  by  the 
Commission  published  in  the  "Evaluation  Report:  Impact  and  Effectiveness  of  EU  Public 
Procurement Legislation", many categories of services formerly classified as non-priority services 
showed a relatively high ratio of cross-border provision. Consequently, any new proposal in the 
field of public purchases must take account of these data. Therefore, such conclusions justify the 
extension of the envisaged rules to those services.  

Nevertheless, services such as social, health and education continue to have a limited cross-border 
dimension, due to the strong impact of different national cultural traditions.  

Furthermore, the data presented in Section 3 shows that concessions are less prevalent in the above 
sectors. It must also be said that the full coverage of these services  by the complete framework is 
politically very sensitive. It is therefore appropriate to establish a specific regime for the award of 
these services. This regime should include the obligation to publish by CAE, at the beginning of 
the budgetary year, a prior information notice. Such a notice would ensure adequate transparency, 
without prejudice to national systems of purchase of this kind of services. Such a legal framework 
should also encompass a requirement to publish a concession award notice. 

111 See CSES study, p. 55. 

25

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
9.1.3. 
1370/2007112  

Public  passenger  transport  services  by  rail  and  road  as  covered  by  Regulation 

At  the  time  when  the  Transport  Regulation  was  adopted,  service  concessions  in  this  field  were 
governed by the Treaty principles. Nevertheless, this sector was considered sufficiently distinctive 
to  be  subject  to  a  more  precise  and  specific  set  of  rules  (including  the  possibility  of  awarding 
contracts to ‘internal operators’). For this reason, and in order not to interfere with the objectives of 
EU  transport  policy  and  to  maintain  the  stability  of  the  legal  framework,  service  concessions 
currently subject to the Transport Regulation should be exlcuded from the scope of the future EU 
legislation on concessions. Moreover, as the current rules applicable in this sector already provide 
for  transparency  and  a  fair  degree  of  legal  certainty,  changing  the  legal  framework  applicable  to 
these concessions is not considered a priority. 

9.1.4. 

Air transport services as covered by Regulation 1008/2008113  

Pursuant  to  this  Regulation,  a  Member  State  may  impose  a  public  service  obligation  (PSO)  in 
respect of scheduled air services between two airports in the Union, in particular when one of them 
serves  an  outlying  or  developing  region.  To  this  end,  the  Regulation  lays  out  a  very  detailed 
procedure for setting up these PSOs and for compulsory tendering. For this reason, and in order to 
avoid  any  possible  conflict  with  rules  that  might  be  drawn  up  under  this  initiative,  it  seems 
preferable to exclude from its scope concessions in air transport services.  

9.1.5 Concessions awarded to entities enjoying of exclusive rights granted in compliance with 
EU law 

In the utilities sector the grant of exclusive rights for the operation of a network is part of specific  
legislative measures aimed at liberalising such sectors. An exclusive right granted in compliance 
with EU law makes it unnecessary and redundant to follow a competitive procedure for the award 
of a concession of network management services  to the holder of an exclusive right since no other 
competitor would be in a position to apply for such contract. Moreover, the transparency resulting 
from  a  mandatory  publication  of  the  act  granting  the  exclusive  right  should  permit  all  interested 
parties  to  fully  evaluate  the  compliance  of  such  right  with  Treaty  or  Union  sectoral  legislation. 
Therefore  it  seems  appropriate  to  provide  for  concessions  awarded  under  such  conditions  to  be 
excluded from the scope of a legislative initiative..  

9.1.6. Concessions of less important value 

Currently, secondary legislation on Public Procurement applies only to public contracts and works 
concessions of a value equal or superior to a certain threshold, above which they are subject to an 
irrebuttable  presumption  of  cross-border  interest.  Similarly,  national  provisions  on  concessions 
usually  apply  only  to  contracts  above  a  certain  value.  All  options  discussed  below  involve  the 
existence  of  such  thresholds,  below  which  service  concessions  and  works  concessions  would 
remain governed only by the Treaty principles.  

Thresholds currently applicable to public contracts and works concessions indicate not only their 
economic  importance  but  also  reflect  a  political  consensus  on  their  cross-border  interest.  The 

112 OJ L 315, 03.12.2007. 
113 OJ L 293, 31.10.2008. 

26

 
 
 
 
  
 
 
 
 
 
 
                                                 
appropriate threshold for service concessions should therefore reflect the extent to which economic 
operators located in other Member States are interested in such concessions. Note, however, that 
such interest depends not only on the value of the concession but also on its geographic location, 
the sector concerned, differences in economic wealth, the rate at which concessions are used, costs 
(including labour costs), etc. To assess the cross-border interest would mean gathering data on the 
actual participation of non-domestic companies in bidding procedures for concessions of different 
values.  However,  as  already  explained,  accessing  such  information  is  extremely  difficult  if  not 
impossible,  given  the  existing  lack  of  transparency.  (This  is  particularly  true  of  information  on 
concessions advertised and awarded).  

Furthermore, reference to existing national thresholds is largely irrelevant, not only because they 
differ widely in those Member States which have regulated concessions but also because national 
thresholds reflect interests of national policy rather than the cross-border interest of the contracts.  

Nor  does  it  appear  appropriate  to  take  the  existing  thresholds  for  service  contracts  and 
automatically extend them to service concessions, since concession contracts have a higher value 
and are more complex and long-lasting.  

The  same  applies  to  the  method  used  for  calculating  the  value  of  public  service  contracts114. 
Indeed, given that in concession contracts the investments and revenues are often spread over many 
years, it seems inadequate to calculate the contract value on the basis of a fixed and limited initial 
timespan (as is the case with public contracts). Consequently, the threshold value applicable to a 
service concession should be calculated on the basis of the total value of services provided during 
the whole duration of the concession.  

Against  this  background,  it  does  not  seem  appropriate  to  establish  a  threshold  for  service 
concessions that is equal to or slightly greater than the one applicable to public service contracts 
(currently € 193 000) but calculated on the basis of the total value of services stipulated. The risk is 
that  this  threshold  would  cover  concessions  that  have  no  clear  cross-border  interest  and  would 
impose  unreasonable  costs  and  administrative  burdens  on  CAEs  and  companies.  Furthermore, 
covering small-value concessions might prove ineffective.  

Stakeholders have also been consulted on the appropriate level of thresholds for service concession 
contracts.  The  PwC  study  showed  considerable  support  from  economic  operators  and  public 
authorities  for  a  threshold  for  service  concessions  equal  to  the  one  already  applicable  to  works 
concessions  (currently  € 4 845 000).  It  was  considered  that  this  would  keep  the  additional 
administrative burden and costs proportionate to the value of the contract, and reflect the contracts' 
clear  cross-border  interest.  This  would  also  be  an  advantage  in  terms  of  legal  certainty  and 
simplification.115 

9.1.7. Scope of application in time 

The proposed legislative initiative will only affect concession contracts which are advertised after 
the date on which the future legislation comes into force. Hence, new legislation will not have any 
impact on the performance of ongoing concession contracts. 

114 According to Art. 9.8(b)(II) of Directive 2004/18/EC, in the case of contracts without a fixed term or with a 
term greater than 48 months, the value of a public service contract is the monthly value multiplied by 48. 
115 By contrast, a threshold of a value of €2.5 million was, in the same study, considered too low. For details, see 
PWC study, p. 119. 

27

 
 
 
 
 
                                                 
9.2.  OPTION 4: LEGISLATION — BASIC RULES 

Basic rules correspond to the existing rules for works concessions.  

The  'basic  rules'  option  would  clarify  the  rules  on  publishing  concession  notices,  on  some  basic 
aspects  of  the  conduct  of  award  procedures  (principally  by  setting  minimal  deadlines  for  the 
submission of a tender) and on available remedies. 

Economic  operators  and  CAEs  responding  to  the  targeted  consultation  mostly  agreed  that  the 
Classic Directive rules currently applicable to public works concessions bring legal certainty.116 It 
can therefore be reasonably assumed that similar rules for concessions not currently covered would 
improve legal certainty and benefit CAEs and undertakings in at least two ways. First, in Member 
States  where  concessions  are  already  in  use,  both  parties  would  run  less  risk  of  the  concession 
being considered as illegally awarded and thus cancelled.117 Second, in all Member States, and in 
particular  in  those  where  CAEs  presently  shy  away  from  awarding  concessions,  legal  certainty 
could help the development of PPPs through this type of contract, increasing the overall efficiency 
of the public action and creating new business opportunities for undertakings.118 This expectation 
is clearly shared by many economic operators who responded to the public consultation.119  

If CAEs become more interested in awarding public tasks as concessions, this is also likely to push 
Member  States  to  develop  or  complete  national  legal  frameworks  covering  non-procurement 
aspects  (e.g.  taxation,  property  issues  etc.)  to  make  concessions  even  easier  to  use  and  more 
beneficial.  Public  entities  would  thus  have  at  their  disposal  a  much  better  legal  instrument, 
enabling  them  to  alleviate  budgetary  pressures  by  transferring  the  provision  of  services  to  third 
parties, whenever appropriate. This would substantially reduce legal uncertainty and thus stimulate 
the  uptake  of  concessions  and  therefore  also  of PPPs.  Projects  which  are  today  too  costly  or  too 
complicated to be carried out by the CAEs themselves might, in this event, be more easily realised 
thanks to third parties’ resources and know-how. Ultimately, the increased uptake of concessions 
and  hence  PPPs  is  expected  to  benefit  consumers,  who  would  gain  from  new  investment  in 
infrastructure and service provision. 

The 'basic rules' approach would include clarifying the definition of a concession. To the current 
definition would be added a reference to transferring the operating risk to the concession holder. In 
addition,  the  types  of  relevant  risk  would  be  clarified.  This  would  eliminate  confusion  between 
concessions  and  public  contracts  and  is  likely  to  reduce  the  number  of  public  contracts  wrongly 

116 See Annex I B, p.3 and 6. 
117 The risk is also taken into account by financial institutions and is reflected in the cost of credit and in equity’s 
eagerness to support the project financially. 
118 This conclusion may be drawn from the Report on the Green Paper consultation, which indicates that the lack 
of legal certainty is one of the major factors deterring the players from using concessions and from taking part in 
the concession award procedures. See the Green Paper on Public Private Partnerships and Community Law on 
Public Contracts and Concessions, COM(2004) 327 final of 30.4.2004. 
119  Of  the  economic  operators  who  answered  the  question  on  possible  changes  to  the  way  public  services  are 
delivered  following  the  legislation  on  service  concessions,  some  48 %  consider  it  likely  that  authorities  which 
currently provide the services directly will externalise them by means of a concession. On the other hand, only 
around 18 % feared a shift in the opposite direction. 

28

 
 
 
 
 
 
 
  
 
 
                                                 
qualified  as  concessions,  thus  also  improving  the  application  and  effectiveness  of  Public 
Procurement Directives.120  

An  obligation  to  publish  a  concession  notice  in  the  OJEU  for  all  concession  contracts  above  a 
certain threshold would be proposed to eliminate legal uncertainty as to whether the requirement of 
‘adequate  advertisement’  has  been  met.  It  would  give  all  EU  operators  better  information  on 
concessions and reduce the number of direct awards. It would also reduce the cost of bidding for 
concessions,  in  particular  the  cost  borne  by  SMEs.121  Non-publication  would  be  considered  a 
serious infringement of EU law, opening the possibility of claiming ineffectiveness of the contract 
as a result of the associated extension of Remedies Directives. 

Mandatory publication of a concession notice would also apply to awards resulting from contracts 
being  substantially  changed  while  they  are  being  implemented.  (It  would  therefore  also  apply  to 
renewals).122 

A  legal  requirement  to  publish  a  concession  notice  would  probably  lead  to  service  concession 
contracts  being  systematically  published  at  rates  comparable  to  works  concessions  and  public 
contracts.123 Even if publication did not immediately result in a higher number of expected bidders, 
positive  effects  could  still  result.  For  example,  bidders  would  have  a  greater  opportunity  to 
challenge  the  award  of  a  concession.124  Indeed,  when  calculating  the  value  of  their  bid,  bidders 
usually do not know how many competitors will submit an offer. As a result, firms tend to base the 
value  of  their  bid  on  their  perception  of  competition  in  their  market.  EU-wide  publication  of 
concession notices would thus enable bidders to submit more competitive offers, to the benefit of 
both  CAEs  and  consumers.125  126  127  Moreover,  some  stakeholders  believed  that  making  it 
compulsory to advertise concessions would probably open the market for new entrants and could 
be  a  way  to  promote  PPP  projects  by  raising  awareness  of  such  projects  and  introducing  more 

120 According to the CSES study, ‘ironically, the greatest early impact may be on public contracts that have been 
designated service concessions in order to avoid procurement procedures'. see CSES study, p.110. 
121 Difficulties in obtaining information on business opportunities is a recurrent problem raised by SMEs as they 
are  unable  to  allocate  sufficient  resources  to  collecting  information.  See  European  Code  of  best  practices 
facilitating access by SMEs to public procurement contracts, SEC(2008) 2193 of 25.6.2008. EDITOR'S NOTE: 
I was unable to locate this document on the internet: please check the reference number. 
122 According to the case law of the Court, an extension or a renewal of a concession may qualify as material 
change of the terms of the award and therefore correspond to the award of a new contract, see Case C-454/06, 
Presstext Nachrichtenagentur [2008] ECR I-04401, point 34. 
123  In  2004,  the  estimated  compliance  rate  was  46 %.  See  Evaluation  of  Public  Procurement  Directives, 
Markt/2004/10/D.EDITOR'S NOTE: I have not een able to check this reference. 
124 A contestable market is a market served by a small number of firms but which is nevertheless characterised 
by competitive pricing because of the existence of potential short-term entrants. Its fundamental features are low 
barriers to entry and exit. In theory, a perfectly contestable market would have no barriers to entry or exit. 
125 The Commission services estimate that, in 2006, the savings made by publishing notices for public contracts 
amounted  to  8 %  of  the  value  of  those  contracts  (representing  € 30  billion  –  which  is  equivalent  to  the  entire 
budget  for  regional  and  convergence  policy).  A  similar  rate  of  savings  could  be  achieved  by  publishing 
concession notices in the OJEU and thus increasing competition and contestability. Given that the value of the 
concessions market was around €138 billion in 2000-2009 (see Chapter 3), some € 2 billion could be saved each 
year, at a conservative estimate. This calculation is based on data for only eight Member States and does not take 
into account the expected future growth of the concessions market. 
126  'Contracting out by relying more on open tenders, governments are likely to obtain public service at lower 
cost. In order to avoid fragmented markets detrimental to efficiency, tendering rules should be harmonised across 
jurisdictions  and  government  levels…'  see  Market  Mechanisms  in  Public  Service  Provisions,  OECD  working 
paper nº 6, page 4. 
127 See CSES study, p. 171. 

29

 
 
 
 
 
                                                 
competition. These assumptions have been largely confirmed by the CSES study,128 which judges 
the potential effects of this action as significant.  

As  many  as  61.6 %  of  the  respondents  to  the  online  consultation  agreed  that  compulsory 
publication of a service concession notice in the OJEU would help increase the transparency of the 
award  process.  Such  publication  was  also  supported  by  most  of  the  undertakings  or  associations 
taking part in the targeted consultation. The overwhelming majority of firms and their associations 
considered  that  the  current  Classic  Directive  rules  applicable  to  works  concessions  ensure  a  fair 
degree of transparency129. 

Firms were also asked how the publication of service concessions would affect different categories 
of  stakeholders.  Some  44 %  of  undertakings  answering  this  question  expected  the  impact  on 
consumers  to  be  positive  whereas  24 %  believed  it  would  be  negative.  Economic  operators  were 
even  more  optimistic  about  the  impact  on  companies:  some  51 %  of  respondents  felt  that 
publishing service concessions would have a positive impact, while around 22 % feared negative 
consequences (due to increased costs). The rest believed that the impact would be insignificant or 
zero. 

Regulating  the  minimum  deadlines  for  the  submission  of  bids  could  also  be  crucial  to  avoid 
discrimination. It would prevent a contracting entity from fixing a very short deadline in order to 
eliminate  unwanted  tenderers.  This  would  greatly  diminish  the  risk  of  corruption  and  ensure  fair 
outcomes.  It  would  also  encourage  the  participation  of  trans-border  bidders,  who  normally  need 
more time to prepare their bid (e.g. to seek advice on local legal provisions, translate documents or 
find a locally based partner). 

The  provisions  applicable  today  for  works  concessions  require  contracts  awarded  by  both  public 
and  private  concession  holders  to  be  published  and  awarded  following  a  competitive  procedure. 
Moreover,  contracting  authorities  have  the  opportunity  to  impose  on  concession-holders  the 
obligation to sub-contract a minimal part of the concession to third parties.  

Although  the  overall  assessment  of  the  legal  framework  applicable  to  works  concessions  by  the 
stakeholders  is  positive,  the  aforementioned  rules  were  considered  by  many  stakeholders  as 
burdensome and inefficient. Therefore, the solutions assessed in the Report include neither of these 
provisions.  

As  evidenced  by  the  CSES  study,  the  effects  of  the  'basic  rules'  option  in  terms  of  increased 
competition, greater innovation and  the  increased  use of  concessions  are  likely to  be particularly 
strong in sectors where services are currently provided directly by public authorities. By contrast, 
increased  use  of  concessions  is  not  likely  to  take  place  in  sectors  and  Member  States  where 
concessions  are  already  in  use.  The  greatest  benefits  to  these  sectors  would  be  improved 
transparency  and  equal  treatment  leading  to  intensified  competition.  The  CSES  study  concluded 
that other possible differences of impact in different sectors would be relatively minor. 

128 According to the report, the "result of requiring a publication notice under the ‘light approach’ would be to 
promote considerably more transparency". According to the same study, the increase in transparency is likely to 
attract more operators having sufficient capacities and, hence, would bring more innovation. In addition, there is 
relatively  "little  opposition  expressed  to  the  idea of  a  legislative  provision  obliging  CAEs  to publish  a service 
concession notice in the Official Journal of the European Union, since this was generally recognised as a direct 
way of promoting transparency in concession markets". CSES study, pp. 100, 110 and 117. 
129 See Annex I B, p.3. 

30

 
 
 
 
 
 
 
 
 
                                                 
The CSES study also indicated a possible drawback: greater transparency in awarding concessions 
not covered at present by secondary legislation could increase the dominance of large companies in 
some sectors such as water supply and waste water treatment. Were this situation to materialise, it 
could make it more difficult for smaller undertakings to access the market. However, this is by no 
means  certain.  Large  companies  are  already  established  in  and  have  access  to  many  national 
markets that interest them. This situation is not likely to change much with increased transparency. 
Furthermore,  it  is  not  certain  that  SMEs  really  are  less  competitive,  especially  when  it  comes  to 
smaller  concessions.130  As  a  matter  of  fact,  smaller  undertakings  would  still  benefit  from  greater 
flexibility  and  better  knowledge  of  local  conditions.  According  to  a  survey  conducted  for  the 
European  Commission,  ‘procurers  have  a  rather  favourable  view  of  SMEs  as  suppliers  in  public 
procurement. Being more flexible and quicker in reacting to their needs than large companies seem 
to be relevant strengths in the eyes of most procurers’131. Advertising concessions should also help 
SMEs to access the market.  

According to the CSES study, stakeholders felt that relatively few costs were likely to be generated 
by  basic  legislation.  Administrative  costs  may  increase  for  CAEs  following  the  introduction  of 
compulsory  publication,  since  the  number  of  bidders  may  increase  and  there  would  be  the 
additional burden of preparing a minimum amount of information to be published. However, this 
cost would be small compared to the value of the contract and may be offset by the better value for 
money  achieved  thanks  to  intensified  competition.  Furthermore,  the  increase  in  administrative 
costs should not be measured against a situation where there is no publication at all, or publication 
of  only  very  basic  information.  Such  practices  should  be  considered  unlawful  under  the  Treaty 
principles and might actually generate much higher costs due to the risk of litigation or intervention 
by  the  European  Commission.  Besides,  in  certain  Member  States,  the  existing  practices  or 
legislative  requirements  involving  multiple  publication  in  national  bulletins  or  the  sector-specific 
press may actually involve costs higher than publication in the OJEU.  

The increase in compliance costs for undertakings is also often quoted as a likely consequence of 
legislation on concessions, although this claim is rarely substantiated. Indeed, it is difficult to see 
why the obligation on a contracting entity to publish a call for a concession would increase costs 
for  the  undertakings.  This  might  perhaps  be  true  if  bidders  found  they  needed  to  prepare  better 
tenders in order to face livelier competition. On the other hand, it is certainly true that incumbent 
companies  receiving  contracts  directly  or  quasi  directly  would  have  to  take  part  in  a  bidding 
process (which might lead to them losing their concession) and to spend money on preparing their 
tenders.  However,  such  costs  already  flow  from  observance  of  the  Treaty  principles.  Finally,  it 
should be noted that most of the respondents to the targeted consultation (addressed to the business 
community)  consider  that  the  current  Classic  Directive  rules  applicable  to  works  concessions 
generate only marginal costs, if any.132 

Legislation is the only way to bring service concessions award procedures within the scope of the 
Remedies Directives. This would make it possible to substantially improve the legal protection of 
bidders, guaranteeing not only their right to contest the result of an award procedure on the grounds 
of  EU  law  but  also  giving  a  number  of  practical  judicial  guarantees  to  all  aggrieved  bidders, 

130  In  France,  home  base  of  Veolia  and  Suez  (the  largest  European  players  in  the  water  sector),  small  and 
medium-sized  companies  still  manage  to  compete  for  and  obtain  concessions  for  water  and  waste  water 
management. 
131 ‘Evaluation of SME’s access to Public Procurement markets in the EU’, DG Enterprise and Industry, Final 
Report, September 2010, p. 66. 
132 See Annex I B, http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm. 

31

 
 
 
 
 
 
                                                 
whether  foreign  or  domestic.  This  would  give  economic  operators  greater  confidence  in  the 
impartiality  of  CAEs’  decisions  and  lead  them  to  take  part  in  a  higher  number  of  tendering 
procedures (in other Member States as well as in their own). As demonstrated by several studies133, 
the  assumption  that  bids  by  foreign  companies  are  automatically  rejected  may  be  an  important 
factor  discouraging  cross-border  participation  in  procurement  procedures.  Remedies  would  also 
enable  authorities  to  monitor,  regularly  and  efficiently,  whether  the  Treaty  principles  are  being 
respected in those areas, where there would be no EU secondary legislation.  

It  is  less  certain  whether  the  objective  of  increasing  equal  treatment  throughout  the  procedures 
would  be  effectively  achieved  by  having  basic  rules  on  concessions.  Nevertheless,  ‘adequate 
advertisement’  through  compulsory  publication,  together  with  the  effective  remedies  available  to 
the bidder, may improve the fairness of the procedure by disciplining the CAEs. Moreover, if the 
present  rules  on  exceptional  changes  to  contracts  for  public  works  concessions  were  extended  to 
cover all concessions, this would foster compliance with the principle of equal treatment. It would 
ensure that competition for the contract is not undermined by substantial and unjustified changes to 
the contract after it is signed. This would improve the current legal situation where it is difficult to 
ensure compliance with the equal treatment principle because it is difficult to draw a line between 
justified and abusive changes to a contract, relating to the provision of additional services. 

On  the  other  hand,  the  'basic  rules'  approach  would  neither  regulate  the  award  procedure  nor 
restrict choice. It would thus allow for negotiations between tenderers and the contracting entity. 
Under this 'basic' scenario, the rules governing the award procedures would not be harmonised.  

Nor would the 'basic rules' option specify the concrete requirements of CAEs in terms of the choice 
of selection criteria, award criteria or technical specifications. In that respect, both the CAEs and 
the economic operators would still be left with uncertainty as to the interpretation of the case law 
of  the  Court  on  these  issues.  The  disparity  of  national  rules  would  still  generate  extra  costs  and 
market  entry  obstacles.  Similarly,  entry  barriers  arising  from  divergent  national  rules  and 
inappropriate award procedures might persist.   

The responses to the online consultation confirm that stakeholders expect rules enabling EU-wide 
competition to have a positive and direct impact on the price and quality of the services used. As 
many as 32.4 % of the respondents believed that the price would decrease (which is twice as many 
as  those  believing  it  would  increase)  and  36.2 %  thought  that  quality  would  improve  (against 
26.5 %  who  believed  it  would  deteriorate).  Similarly,  many  of  the  consulted  economic  operators 
considered that the current rules on public works concessions contribute to lower prices and higher 
quality. 

According  to  the  results  of  the  online  consultation,  the  stakeholders  who  are  expected  to  benefit 
most from the planned legislation are the users of services (according to 31.9 %  of respondents), 
followed by public authorities, companies and taxpayers. Employees were most often quoted as the 
group which would benefit the least (27 %).   

However,  despite  these  expected  benefits,  the  'basic  rules'  option  does  not  fully  eliminate  the 
problems of legal uncertainty described earlier.  

133 See e.g. ‘Opening the public sector to SMEs in the Alpine Space. Coping with the difficulties encountered by 
SMEs  when  tendering  abroad.  Abstract  of  the  SWOT  analysis  conducted  by  the  ALPPS  (Alpine  Public 
Procurement Services) — April 2005. 

32

 
 
 
 
 
 
 
 
                                                 
When it comes to transposing future 'basic rules' legislation into national law, it should be noted 
that all of the proposed provisions already apply to works concessions and have thus already been 
transposed. Member States will only need to extend them to service concessions. Moreover, certain 
Member  States  have  already  adopted  legislation  on  service  concessions,  embracing  most  of  the 
proposed requirements. The new provisions will be enforced through the disciplining effect of the 
Remedies Directive.  

9.2.1. 

Option 4: Legislation — Basic rules — Economic Impact 

As the CSES report concludes, ‘a greater profile for service concessions would promote innovation 
and productivity and ultimately economic growth and employment. Use of concessions in the new 
areas  outlined  could  provide  a  boost  to  the  creative  economy,  with  all  its  benefits  in  terms  of 
locally  generated  and  sustainable  growth’134.  In  addition,  the  introduction  of  the  'basic  rules' 
approach is likely to result in lower prices and more investment. More efficient and higher-quality 
strategic  services  such  as  energy  or  water  services  may  help  boost  the  competitiveness  of  the 
European economy as whole. 

Greater  competition  for  the  award  of  service  concessions  could  also  improve  and  speed  up  the 
delivery  of  public  investment.  This  was  the  view  of  48.7 %  of  respondents  to  the  online 
consultation,  while  44.3 %  disagreed.  In  addition,  37.3 %  of  the  respondents  believe  that  greater 
competition would have an impact on access to services of general economic interest, and as many 
as 84.1 % think it may make these services more accessible. 

The accuracy of these forecasts seems to be confirmed by the downward trend of prices in France, 
where the 1993 Loi Sapin made it obligatory to publish a concession notice at national level and to 
follow  a  competitive  procedure.  According  to  studies  by  a  French  institute  (Labo  GEA),  prices 
paid by consumers for water supply and waste water treatment are constantly decreasing: they have 
fallen on average by 5.5 % per year since 2004 and fell by as much as 9.2 % in 2006. Moreover, 
according  to  a  study  by  another  French  institute  (FP2E),  the  R&D  work  done  by  private  water 
sector concessionaires — investing €140 million in 2008 alone — has permitted a ‘technological 
leap’ in the field of water and waste water management and environmental protection.135       

9.2.2. 

Option 4: Legislation — Basic rules — Social Impact 

When it comes to the possible social impact of 'basic rules' legislation, 48.1 % of respondents to the 
public online consultation felt that greater competition for the award of service concessions would 
benefit employment in the sectors concerned. According to the CSES study, greater transparency 
would  create  the  ‘possibility  of  more  innovative  approaches  and  greater  choice  and  efficiency in 
the public services’. 

On the other hand, the study also draws attention to possible drawbacks in the field of employment. 
If public authorities take an increased interest in concessions, this could result in a shift from the 
direct provision of public services towards externalisation via  concessions, and thus the incumbent 
operators would lose their contracts. 

To  regard  this  as  a  drawback  is  to  assume  that  public  sector  employers  offer  better  working 
conditions  and  that  the  execution  of  a  public  task  by  a  private  company  is  more  efficient,  as  the 

134 See CSES study, p. 110. 
135  See  ENGREF  ,  http://engref.fr/labogea  and  «Les  services  publics  d’eau  et  d’assainissement  en  France», 
BIPE/FP2E, 4éme édition, mars, 2010. 

33

 
 
 
 
 
 
 
                                                 
work is organised differently. However, consultation of the social partners shows that at least the 
first  of  these  assumptions  is  questionable.  Although  it  was  not  possible  to  compare  working 
conditions  in  public  and  private  undertakings  throughout  the  EU  specifically  in  the  sectors 
concerned  by  concessions,  statistics  quoted  for  the  waste  management  sector  in  France  indicate 
that  the  salaries  paid  by  private  employers  were  actually  higher  than  those  paid  to  public 
employees.  Interestingly,  the  online  consultation  indicated  that  the  number  of  local  jobs  was 
expected to decrease: this was the view of 57.3 % of those participants who believed that greater 
competition  would  have  an  impact  on  employment.  On  the  other  hand,  50.6 %  of  the 
abovementioned  group  believed  that  working  conditions  would  improve.  According  to  47.5 % of 
the  respondents,  EU  legislation  on  service  concessions  would  lead  public  authorities  to  make 
greater  use  of  concessions  to  deliver  public  services:  51.6 %  of  respondents  considered  that  this 
would lead to the disappearance of local jobs, but 55.8 % felt it would improve working conditions.  

There  are  fears  that  the  externalisation  of  tasks  could  have  negative  consequences.  For  example, 
these  tasks  might  be  take  over  by  undertakings  which  organise  their  work  differently  and  need 
fewer  employees.  However,  the  current  EU  legislation  on  safeguarding  employees’  rights  in  the 
event of transfers of undertakings136 may be applicable here. In such cases, this legislation restricts 
the  scope  for  lay-offs,  as  the  transfer  does  not  in  itself  constitute  valid  grounds  for  dismissing 
workers.  This  legislation  applies  every  time  there  is  a  change  of  employer,  provided  that  the 
transferred entity maintains its identity. (The 'transferred entity' is defined as an organised grouping 
of resources having the objective of pursuing an identifiable economic activity). 

Not all concession awards will be covered by these rules137. The case law of the CJEU concerning 
the scope of this Directive recognises that it applies in cases involving a transfer of public service 
activities from an administration (direct provision) to a private law company, from a legal person 
governed  by  private  law  to  a  municipality  and  from  one  undertaking  to  another,  following  the 
award  of  a  public  contract.  Several  consulted  stakeholders  have  also  indicated  that  the 
abovementioned EU provisions would often apply to a change of concession-holder. In several of 
their  responses  to  the  targeted  consultation,  social  partners  also  clearly  expected  that  the  shift 
would have no significant impact on employment, as EU law prevents the employer from laying 
off employees on the grounds of a transfer. 

Some other social partners were hesitant as to the actual impact of compulsory advertisement and 
observed that it is ‘difficult to claim a priori what impact on job creation or losses the compulsory 
advertisement  of  services  concessions  might  have.  It  might  be  the  case  that  the  enhancement  of 
efficiency in the provision  of public  services could be  achieved through  creation  of new jobs, in 
other cases — through the abolishment of some workplaces.’138 

9.2.3. 

Option 4: Legislation — Basic rules — Environmental Impact 

The introduction of basic rules on the award of services concessions would have no impact on the 
ability  of  CAEs  or  regulatory  bodies  to  set  environmental  standards  that  must  be  respected. 
Consequently, anticipated externalisation and the increasing popularity of concessions are unlikely 
to impede or influence environmental policies. That being said, the CSES report observed that  ‘in 

136 See Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States 
relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of 
undertakings or businesses (OJ L 82, 22.3.2001). 
137  For  instance,  the  rules  may  not  apply  to  a  change  of  private  partner  in  a  mixed  capital  entity  executing  a 
concession,  given  that  a  change  in  the  shareholding  of  a  company  does  not  constitute  a  transfer  of  the 
undertaking, as the employer’s legal personality remains the same. 
138 See Annex I B, p.8 . 

34

 
 
 
 
 
 
                                                 
important  areas  for  the  environment,  where  service  concessions  are  common,  such  as  the  water 
sector  and  waste  treatment  especially,  encouraging  innovatory  processes  would  also  lead  to 
advantages  for  the  environment’.  Overall,  both  the  increased  use  of  concessions  and  increased 
competition  resulting  from  greater  transparency  are  likely  to  have  a  positive  influence  on 
investment in and the management of services which affect the environment. 

9.3.  OPTION 5: LEGISLATION — DETAILED RULES 

The detailed rules, as explained above, correspond to the rules applicable to public contracts. 

As  was  mentioned  in  the  'Options'  section,  the  'Detailed  rules'  option  embraces  all  the  legal 
solutions included in the 'Basic rules' option, except for rules on subcontracting. The two options 
are therefore expected to have very similar impacts on legal certainty. Detailed rules would clarify 
the provisions on advertising concessions and would draw a clear distinction between concessions 
and public contracts. 

This  option  is  also  likely  to  enhance  legal  certainty.  Indeed,  unlike  the  Basic  rules,  it  offers  a 
comprehensive  and  detailed  formulation  of  the  Treaty  principles  and  makes  them  applicable  to 
many aspects of the award procedure. Most importantly, this is the case with rules on selection and 
award  criteria,  and  on  technical  specifications.  Its  specific  provisions  are  likely  to  ensure  even 
better access to the market.   

The detailed provisions going beyond the 'basic' option considered in the previous section can be 
divided  into  two  different  categories.  The  first  category  covers  clarifying  provisions,  enhancing 
legal certainty without adding additional or more concrete obligations. This category includes rules 
on  public-public  cooperation  and  on  modifications.  The  second  category  encompasses  rules 
imposing  additional  –  or  concretised  –  obligations  on  CAEs  or  Member  States,  such  as  many  
procedural requirements foreseen today in the Public Procurement Directives, as well as envisaged 
provisions on governance.    

Rules on public-public cooperation would more clearly define the boundaries of the inititiave and 
would  make  it  easier  for  CAEs  to  know  when  to  apply  rules  for  the  award  of  concessions.  This 
should  in  turn  reduce  the  perceived  risks  and  incidence  of  litigation.  Reducing  the  costs  of  legal 
assistance associated with avoiding (perceived) legal uncertainty, managing risk and dealing with 
legal  challenges  should  generate  budgetary  savings.  Clarification  (through  targeted  legislative 
intervention) of the applicability of EU rules could bring valuable support to the development of 
public-public cooperation in procurement. These types of collaborative purchasing between groups 
of public purchasers (often for purposes of achieving scale or administrative efficiency) seem set to 
increase as local authorities look for ways to optimise the use of scarce public resources. 

Rules on modifications would clarify the notion of modification of substantial terms of the award 
of the contract. They would also provide for a «safe harbour» covering modifications with a value 
that  does  not  exceed  the  thresholds  of  the  inititiave  and  is  below  5 %  of  the  price  of  the  initial 
concession and provided that the modification does not alter the subject-matter of the concession.  

Rules  on  selection  criteria  would  ensure  that  candidates  are  assessed  purely  in  terms  of  their 
capacity to carry out a concession contract. These rules would therefore prevent CAEs from laying 
down other criteria which, although strictly speaking non-discriminatory, would nevertheless allow 
them  to  eliminate  potential  contractors  on  more  or  less  arbitrary  basis.  More  importantly,  these 
provisions would help improve the situation of SMEs, not only by giving them the chance to sub-

35

 
 
 
 
 
 
 
 
 
  
contract but, in particular, by providing certain guarantees to consortia. The rules require CAEs to 
apply the criteria jointly to all members of a consortium and prohibit the exclusion of candidates 
for the sole reason that they rely on a third party.  

Detailed rules would also ensure that the choice of award criteria is restricted to the price and the 
most economically advantageous tender (MEAT). Again, this restriction ensures transparency and 
fairness  of  choice,  as  CAEs  are  bound  to  evaluate  tenders  on  their  merits,  without  including 
discriminatory considerations such as a relationship of personal trust with a bidder. An important 
advantage  of  detailed  rules  is  that  they  would  require  CAEs  to  publish  the  relative  weighting  of 
their  award  criteria.  This  allows  effective  verification  of  whether  the  criteria  have  been  applied 
correctly and impartially. By ensuring impartiality on the part of CAEs, this increased transparency 
may boost the participation of non-domestic EU companies. 

Provisions  on  technical  specifications  play  an  important  role  in  preventing  any  distortion  of  the 
free movement of goods and services, reaching beyond the issue of awarding concessions. Public 
Procurement  Directives  require  observance  of  the  rules  on  technical  specifications  even  when 
awarding  non-priority  services  —  which  are  exempt  from  almost  all  other  provisions  of  the 
Directive,  including  the  publication  of  a  tender  notice.  The  complexity  of  the  services  provided 
through  concessions  would  not  be  an  impediment  to  applying  the  existing  rules  on  technical 
specifications, as the specifications can also be formulated in terms of performance or functional 
requirements. 

The  obligation  to  publish  an  award  notice  would  make  the  procedures  more  transparent  and 
reinforce the self-discipline of CAEs. It would also provide the Commission with a useful tool for 
monitoring and obtaining statistical data on the number of concessions awarded. 

All  of  the  abovementioned  provisions  would  help  improve  the  general  fairness  of  concession-
awarding  procedures  and  provide  better  access  to  the  market.  They  would  thus  strengthen 
competition between bidders, delivering better value for money and promoting innovation.  

However,  according  to  the  CSES  report,  many  stakeholders  perceive  the  complexity  of  the 
'detailed  rules'  option  as  a  major  threat.  It  appears  from  the  consultations  carried  out  that  this 
position  is  actually  shared  by  both  public  administrations  and  economic  operators.  The  most 
problematic issues are, in their view, the choice of procedure and the award criteria.  

Given the market's strong perception of the difference between public contracts and concessions, 
certain types of provisions applicable to public contracts such as the obligation to follow a specific 
procedure might actually reduce the uptake of concessions and diminish legal certainty (although 
they would probably make the procedures fairer). It might, indeed, be counterproductive to insist 
that only the standard procedures (i.a. open or restricted procedure or 'competitive dialogue') be 
used  for  awarding  concessions,  and  also  counterproductive  to  prohibit  different  models  of 
negotiation  (commonly  used  in  certain  MS  to  award  concessions)  except  in  very  specific 
circumstances. Such restrictions could prove inadequate to the needs of more complex concessions 
and  might  increase  the  risk  of  litigation  and  of  subsequent  cancellation  of  the  contract. 
'Competitive  dialogue'  has  been  invented  as  a  more  transparent  solution  to  be  used  in  cases  of 
legal, financial or technical complexity. However, a large number of stakeholders claim that is is 
inadequate for dealing with the type of problems encountered when awarding concessions.  

With reference to the award criteria, apart from those who do not understand the concept of MEAT 
and reduce it only to price, many argue that, in view of the long duration of concessions, and given 

36

 
 
  
 
 
 
 
 
 
their complex character and the important responsibilities conferred on the concession-holder, the 
contracting entity should be permitted to re-use some bidder-related criteria at the award stage.  

According to the CSES study, if the 'detailed rules' option were applied, ‘many companies would 
simply withdraw from the concessions market. The effects of this are the opposite of those outlined 
as the benefits of the lighter approach (Basic rules)’139. This is because of the perceived risks and 
additional  costs  of  this  option.  Moreover,  the  way  CAEs  and  economic  operators  perceive  the 
'detailed rules' might determine their effect more than their actual strengths and weaknesses.  

This  perception  may  not  actually  be  well  grounded.  Indeed,  some  idea  of  the  additional  burden 
these  rules  would  impose  (in  terms  of  the  length  of  the  procedure  and  the  human  resources 
deployed) can be obtained from the relevant figures for public contracts140. According to the study, 
public contract procedures conducted under EU Procurement Directives in 1992-2003141 generated 
enforcement and compliance costs for the CAEs estimated at less than 0.7 per cent of the contract 
value.  These  costs  were  largely  offset  by  a  reduction  in  prices  (resulting  from  increased 
competition) of more than 2.5 per cent of the contract value.142  

Overall, however, it is quite possible that the major benefit of the 'basic rules' option (which is an 
increased  interest  in  concessions  among  both  economic  operators  and  administrations,  and  the 
resulting increase in the efficiency of public action) would be lost if detailed rules were introduced. 
Many  economic  operators  fear  that  overregulation  of  concessions  would  provoke  a  shift  towards 
the  direct  provision  of  services  or  direct  awards  to  public  ‘in-house’  entities.  Against  this 
background,  the  CSES  report  concludes  that  ‘the  ‘fully  fledged’  (Detailed  rules)  approach  is 
thought  to  provide  only  marginal  advantages  over  the  ‘light  approach’  (Basic  rules)  in  terms  of 
open, transparent and fair procedures’143, in comparison with clear disadvantages.  

The 'Detailed rules' approach appears, therefore, to provide better access to the market, but at the 
same  time  its  advantages  would  be  neutralised  by  substantially  reducing  the  market  for 
concessions. CAEs would therefore fail to realise the expected benefits and consumers would fail 
to  gain  access  to  cheaper  and  better  quality  services.  The  most  affected  group  of  stakeholders 
seems to be economic operators who would, in many cases, actually lose market opportunities as a 
result of a shift towards direct provision of services by public administrations. 

In addition, transposing detailed rules may be more problematic than transposing the basic rules. 
Detailed rules are, indeed, much more complex and require much greater adaptation of the existing 
national rules or practices. Nevertheless, the proposed rules are well known to the Member States 
as they currently apply to public contracts. The Remedies Directive will, again, help ensure that the 
rules are enforced, but the complexity of the system is likely to provoke greater perturbations as 
compared to Basic rules.  

9.3.1. 

Option 5: Legislation — Detailed rules — Economic Impact 

Introducing detailed rules is likely to have a negative economic impact because it might reduce the 
extent  to  which  concessions  are  used.  The  objectives  announced  in  the  Commission’s 

139 See CSES study, p. 111. 
140 Evaluation of Public Procurement Directives, Markt/2004/10/D. 
141 Directive 93/37/EEC (OJ L 199, 9.8.1993), Directive 93/36/EEC (OJ L 199, 9.8.1993), Directive 92/50/EEC 
(OJ L 209, 24.7.1992) and Directive 93/38/EEC (OJ L 199, 9.8.1993). 
142 See Evaluation of Public Procurement Directives, Markt/2004/10/D, executive summary, point 9, page iv. 
143 See CSES study, p. 6. 

37

 
 
 
 
 
 
 
 
 
                                                 
Communication  on  PPPs144  (in  particular  investment  in  infrastructure  projects  and  innovation  in 
public services provision) would not be achieved, as CAEs might stop using the most popular and 
adequate  legal  forms  of  PPP.  According  to  CSES,  ‘there  would  be  a  dampening  effect  on 
innovation,  with  the  eventual  consequences  of  lower  growth  and  employment’.145  The  overall 
economic impact would be suboptimal. 

9.3.2. 

Option 5: Legislation — Detailed rules — Social Impact 

The  impact  on  employment  and  the  quality  of  jobs  is  likely  to  be  limited.  The  anticipated  shift 
towards direct provision of services should not provoke direct lay-offs if all the requirements are 
met  for  applying  the  abovementioned  EU  legislation  on  transfers  of  undertakings  (see  the 
evaluation of social impacts for Basic rules). However, if the reduced use of concessions were to 
result in less innovation and poorer-quality services, the social impact might be negative. 

9.3.3. 

Option 5: Legislation — Detailed rules — Environmental Impact 

As with the social impact, the result could be slightly negative due to slower innovation. 

9.4.  OPTION 6: LEGISLATION — MIXED RULES 

Our analysis of the two preceding ‘extreme’ options shows that neither of them is capable of fully 
achieving the objectives of the initiative. Although the 'Basic rules' approach appears to be a better 
solution,  offering  clear  economic  benefits  and  possible  social  and  environmental  advantages,  it 
nevertheless falls short of fully meeting certain objectives. In particular, the objectives of improved 
market  access  and  increased  transparency  would  be  better  achieved  if  legislation  included  a  few 
additional provisions on  technical specifications, selection criteria, award criteria and publication 
of the award notice.146 Such provisions could therefore be usefully added to the basic rules. On the 
other hand, it has been shown that detailed rules would be rejected by the market players and might 
result in less use of concessions147. However, there has been no substantial opposition to including 
limited  rules  on  technical  specifications,  selection  criteria  or  award  notices  in  the  legislative 
proposal.  Such  additional  rules  might  apply  not  only  to  service  concessions,  but  also  to  works 
concessions, in order to keep both types of concession under a similar legal regime. 

An  optimal  set  of  rules  should  not  only  ensure  better  access  to  the  market  and  greater  legal 
certainty but also avoid the dissuasive effect of the detailed rules (diminished use of concessions). 
The choice of each concrete requirement regarding the award of concessions must be informed by 
a  comparison  of  its  expected  benefits  and  possible  negative  consequences.  The  rules  already 

144 COM(2009) 615 final of 19.11.2009. 
145 See footnote 141 above, p. 172. 
146 This balanced approach would also reduce the risks of favouritism or corruption which are particularly high 
in view of the large sums normally at stake in this type of contract. As noted by the OECD, 'corruption arises in 
procurement when the agent of the procurer in charge of procurement is influenced to design the procurement 
process or alter the outcome of the process in order to favour a particular firm in exchange for bribes or other 
rewards.  Examples  might  include  drawing  up  the  specifications  in  a  way  that  excludes  other  firms  from 
competing  for  the  contract  or  cutting  short  the  period  of  responses  to  limit  the  number  of  bidders'.  see 
background  note  by  Darryl  Biggar,  in  Procurement  Markets,  OECD  Journal  of  Competition  Law  and  Policy, 
1998. 
147 According to EPEC’s European PPP Report (2009), 'the difficulties of navigating the procurement process  
[i.e.  the  public  procurement  standard  award  procedures]  can  discourage  investors,  particularly  without  local 
partners and knowledge'. See page 20. 

38

 
 
 
 
 
 
 
 
 
 
                                                 
referred to above (Basic or Detailed) will be taken into account as a basis, as these rules essentially 
cover the requirements which can be derived from the Treaty principles.  

In addition to the provisions of the basic rules, 'mixed' rules would require provisions on public-
public cooperation and on modifications, which would enhance legal certainty as to, respectively, 
the  scope  of  the  new  legislation  and  the  provisions  governing  re-tendering  of    a  modified 
concession. These rules would  allow national authorities to implement legislation more effectively  
while  helping  companies  to  identify  confidently  valid  business  opportunities  and  organise 
themselves accordingly. 

It would also require  selection criteria to be proportionate to the subject matter of the contract and 
allow  for  the  use  of  third  parties’  capacities.  Such  rules  would  ensure  that  the  candidates' 
qualifications  are  assessed  objectively.  Additionally,  the  proposed  rules  would  also  encourage 
small  and  medium-sized  firms  (SMEs)  to  take  part  in  the  tendering  process,  as  part  of  wider 
consortia or as subcontractors, since their capacities would be evaluated jointly by the contracting 
entity.  At  the  same  time,  the  contracting  entity  could  also  expect  to  be  given  a  non-exhaustive 
catalogue  of  evidence  of  these  capacities.  This  would  improve  the  fairness  and  transparency  of 
procedures,  preserve  flexibility  and  allow  CAEs  to  require  evidence  considered  appropriate  for 
carrying  out  the  contract.  This  flexibility  is  justified  by  the  long  duration  and  complexity  of  the 
contractual relations established within the framework of a concession. As to possible provisions 
on  procedures  and  on  award  criteria,  account  should  be  taken  of  the  objections  raised  in  the 
context  of  the  'Detailed  rules'  option,  while  at  the  same  time  providing  for  some  additional 
guarantees  of  fairness  in  the  award  procedure.  On  the  basis  of  the  Court’s  case-law,  it  seems 
reasonable to require the use of objective, non-discriminatory award criteria linked to the subject 
matter  of  the  contract,  and  these  criteria  would  have  to  be  published  prior  to  the  submission  of 
offers  (in  decreasing  order  of  importance  or  together  with  the  respective  weightings).  Social  and 
environmental criteria could be included here. By contrast, the more restrictive provisions currently 
applicable to public contracts, such as the compulsory use of price or MEAT criteria, would not be 
included. In particular, the CAEs would have the option of referring to features of the operator that 
are relavant to the concession's subject matter. This goes beyond the scope of MEAT. 

As to the shape of award procedures, guarantees related to the compulsory ex ante publication of 
criteria  or  minimum  deadlines  would  substantially  improve  fairness.  Specific  requirements  for 
safeguards during the negotiation stage could also usefully be added. For instance, the conracting 
entity could be obliged to disseminate the same information to all bidders and to keep a material 
record  of  the  negotiations  conducted.  Such  provisions  can  be  expected  to  increase  transparency, 
fairness and legal certainty, thereby helping achieve a number of the present initiative's objectives. 
Fairer  competition  and  more  consistent  legislation  might  improve  the  outcome  of  tendering 
procedures without hindering the expected increase in the use of concessions. At the same time, the 
proposed rules would not provide for a fixed catalogue of fully-structured award procedures, as this 
would  arguably  be  quite  burdensome  and  incompatible  with  the  need  for  flexibility.  Indeed, 
referring to the standard procedures would effectively mean applying all the other rules laid down 
in the Public Procurement Directives — in other words, the 'Detailed rules' option.   

Furthermore, the calculation of the value of a concession might sometimes be problematic, in light 
of the need to take into account the future – uncertain – revenue of the concessionaire. Hence the 
publication  of  the  award  notice  could  contribute  to  streamlining  the  calculation  methods  and  to 
discipline  those  authorities  who  would  tend  to  undervalue  the  concessions  in  order  to  avoid 
publication. For this reason, publication of an award notice including details of calculation of the 
concession value could be made compulsory for all concessions the value of which is higher than € 
2 500 000. 

39

 
 
 
The positive effects of mixed rules have been confirmed by the respondents to our public online 
consultation. Participants were asked how the provision of works and services might be affected by 
clear  and  appropriate  EU  rules  on  the  procedure  for  awarding  works  and  service  concessions.  In 
response,  25.9 %  said  that  the  price  would  decrease  and  31.9 %  that  the  quality  would  improve. 
(This is against 16.8 % of respondents who believed that the price would increase and 18.4 % who 
thought that the quality would deteriorate). According to 46.5 % of the respondents, EU legislation 
on  services  concessions  ensuring  Europe-wide  transparency  and  equal  opportunities  for  all  EU 
operators would help deliver the best value for money. In our targeted consultation of the business 
community, fair selection criteria and technical specifications were often cited as crucial features 
of a fair and transparent procedure, and problems concerning selection criteria were also most often 
cited as shortcomings of award procedures in which the respondents had participated.148 Similarly, 
in  the  study  realised  by  PwC,  a  scenario  very  similar  to  the  ‘mixed  rules’149  was  analysed  and 
received a positive overall appreciation both from the private150 and the public sector.151 

The requirements mentioned above would not be as detailed and prescriptive as the corresponding 
provisions  of  the  Public  Procurement  Directive,  but  would  nevertheless  contain  concrete 
obligations. They would leave substantial flexibility in the hands of the contracting entity (freedom 
to choose the most appropriate award procedure, substantial room for manoeuvre in choosing the 
award criteria or the required evidence of compliance with the selection criteria), duly taking into 
account  the  complex  nature  of  concessions  and  the  existing  practices  and  legal  traditions.  The 
abovementioned  provisions  impose  only  a  small  burden  on  the  stakeholders  and  should  not 
substantially  raise  the  compliance  cost.  Obligations  such  as  ex  ante  publication  of  criteria,  non-
discrimination of consortia or the simultaneous dissemination of  information for negotiations are 
sufficiently clear and self-explanatory and should therefore not cause problems. This  would be a 
great  improvement  over  the  current  situation,  where  the  vague  and  general  nature  of  the  Treaty 
principles makes them hard to understand. In other words, the above rules will effectively reduce 
the margin of interpretation left to Member States on these issues. 

The transposition process for the 'mixed' rules is likely to be similar to the process for transposing 
'basic'  rules,  and  no  major  problems  should  be  expected.  Although  many  of  the  proposed 
provisions  are  generic  in  nature,  they  always  refer  to  concepts  well  known  in  the  national  legal 
systems and currently applicable to public contracts. At the same time, the proposed solutions are 
less detailed and prescriptive than the detailed rules and their implementation should not involve 

148 Annex I B, p.3. 
149  Base  line  scenario:  introduction  of  detailed  rules  for  awarding  concessions  consistent  with  the  current 
Commission  interpretative  communication  on  concessions  under  Community  law  (OJ  C  121,  29.4.2000).  The 
threshold  amount  for  service  concessions  is  € 5  million,  while  the  threshold  amount  for  a  works  concession 
remains  as  at  present.  These  rules  include  a  clear  definition  of  concessions,  rules  on  advertising  concessions, 
technical specifications, the obligation to follow a certain procurement procedure (see Options 2 and 3) and some 
judicial protection. 
150 It should be noted that the rate of approval was lower among SMEs. However, the scenario tested did not refer 
to certain SME-friendly provisions which are set to be a part of the Mixed Rules, such as provisions favouring the 
participation of consortia and rules on sub-contracting. 
151 In its opinion on the Commission’s Communication on Mobilising private and public investment for recovery 
and long term structural change: developing Public Private Partnerships, COM(2009) 615 final of 19.11.2009, 
the  Committee  of  the  Regions  considered  that  'it  is  too  soon  for  the  Commission  to  regulate  on  service 
concessions.  If  the  Commission  decides  nonetheless  that  service  concessions  are  to  be  covered  by  the 
Community’s  procurement  directives,  it  is  extremely  important  that  these  rules  be  as  simple  and  flexible  as 
possible. In that case they should be guided by the provisions of the directives on public works concessions and 
on no account by the provisions governing procurement of services'. See recommendation nº 3, ECOS-V-005. 

40

 
 
 
                                                 
any major problems in Member States which already have rules or follow practices compliant with 
the  Treaty  principles.  The  Remedies  Directive  will  additionally  serve  the  purpose  of  efficient 
enforcement. 

9.4.1. 
impact 

Option  6:  Legislation  —  Mixed  rules  —  Economic,  Social  and  Environmental 

If  the  market  players  correctly  perceive  the  scope  of  proposed  extra  provisions,  all  impacts 
(economic, social and environmental) should be slightly improved in comparison with the effects 
of the Basic rules. 

41

 
 
 
10. 

COMPARING THE OPTIONS  

On the basis of the above analysis, it is clear that the 'Basic rules' option would achieve most of the 
objectives  and  significantly  improve  both  legal  certainty  and  market  access.  The  long-term 
economic effects of such rules are likely to be clearly positive, while the social and environmental 
impacts would also be positive or at least neutral. However, they would  fall  short of making the 
award process sufficiently clear and transparent. 

The  'Detailed  rules'  option  would  make  for  better  results  in  terms  of  fair  procedures  and  better 
value for money, but would also have major drawbacks. There is a risk that overregulation would 
discourage the use of concessions and that public authorities might increasingly turn to ‘in-house’ 
solutions instead of externalising the services. In that case, the overall impact would be negative. 

By contrast, the 'Mixed rules' option capitalises on all the benefits of the 'Basic rules' approach and 
provides some additional advantages in terms of fairness and better value for money, as provided 
for  by  the  'Detailed  rules'.  Consequently,  'Mixed  rules'  would  best  achieve  the  objectives  of  the 
initiative, and - given their flexibility - also seem to provide the most appropriate framework for 
stimulating the use of concessions and therefore engagement in PPPs. 

In the light of the above analysis it is recommended that the Commission adopt Option 6 — 
Mixed rules — which represents an ambitious and comprehensive solution.  

In  terms  of  scope,  the  legislation  should  cover  concessions  in  the  field  of  utilities  (as  defined 
currently in Directive 2004/17/EC), but the core of its provisions should not apply to some of the 
non-priority  services  (as    currently  defined  in  Directive  2004/18/EC  and  Directive  2004/17/EC), 
namely  to  educational,  health  and  social  services..  Nor  should  the  envisaged  legislation  apply  to 
public passenger transport services by rail and road as covered by Regulation 1370/2007 or to air 
transport services as covered by Regulation 1008/2008.  

11.  MONITORING AND EVALUATION  

The indicators for evaluating the legislation will be as follows:  

Average  number  of  bidders  replying  to  concession  tenders  advertised  at  EU  level  (to 

Number  of  concession  notices  and  concession  award  notices  published  in  the  OJ  and 

Estimated  value  of  concessions  advertised  at  EU  level  (measured  as  a  percentage  of 

• 
yearly changes of this number, 
• 
GDP) 
• 
measure competition) 
• 
country where the concession was put out to tender (to measure cross-border activity). 
• 
Percentage of Court rulings on concessions which deal with clarifying either the notion 
of concession (and the confusion between the notions of public contracts and concessions) or the 
procedures  for  the  award  of  concession  contracts  (to  measure  to  what  extent  legal  certainty  has 
been improved)  
• 

Number of concession contracts awarded to firms operating in a country other than the 

Value of the concessions awarded 

These indicators will be retrieved from concession notices and (in the Mixed rules scenario) from 
the  award  notices.  The  obligation  to  publish  an  award  notice,  if  included  in  the  future  legal 

42

 
 
 
 
 
 
 
 
 
 
 
 
instrument, will provide systematic insight into the number of concessions published, the estimated 
value of the contract and its relation with the value calculated on the basis of the winning tender, 
the origin of the winner and the collection of other information that is useful from the point of view 
of the abovementioned parameters. 

Summary of the impacts identified 

Effects on: 

Legal certainty  

Procedural 
compliance 
with EU law 

Legal 
protection of 
tenderers 

Effective 
competition  

Facilitation of 
Investments  

Basic rules 

Detailed 
 rules 

+ 

+ 

Mixed rules 

++ 

≈ 

++ 

+ 

++ 

++ 

++ 

+ 

++ 

+ 

++ 

-- 

++ 

Stakeholders 

Consumers/Taxpayers 

CAEs 

Economic 
Operators 

Employees  

Basic rules 

Detailed rules 

Mixed rules 

+ 

+ /≈ 

++ 

++  

++ 

-- 

+ 

-- 

+ 

+ / ≈ 

-/ ≈ 

+ / ≈ 

Magnitude of impact as compared with the baseline scenario: 

++ strongly positive; + positive; -- strongly negative; — negative; ≈ marginal; ? uncertain 

43

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Annex I — Outcome of the consultations 

Annex I A 
  Response statistics for PUBLIC CONSULTATION ON AN 

INITIATIVE ON CONCESSIONS — ONLINE QUESTIONNAIRE 

Status : Active 

  Date open :   

End date : 2010-07-09 

  There are      185 responses matching your criteria of a total of      185 records in the 

current set of data.    

Search criteria 
  All data requested 

Meta Informations 

I — PROFILE 

1. Are you replying: (Please choose only one answer) 

Number of 
requested 
records (185) - 
All respondents 

67 
118 

% Total n° of respondents 
(185) 

     (36.2%)      
     (63.8%)      

Number of 
requested 
records (67) - 
all citizens/ 
consumers 

% Total n° of 
citizens/ 
consumers 
(67) 

% Total n° of 
respondents 
(185) 

44 
23 

     (65.7%)      
     (34.3%)      

      (23.8%)      
      (12.4%)      

  As a citizen/consumer 
  On behalf of an 

organisation/company/public 
authority (→ go to Question 1.c) 

  A. Citizen/ Consumer 

1.a Gender 

  Male 
  Female 

1.b Your age group 

44

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
Number of 
requested 
records (67) - 
all citizens/ 
consumers  

% Total n° of 
citizens/ 
consumers 
(67) 

% Total n° of 
respondents 
(185) 

1 
1 
48 
17 
0 

     (1.5%)      
     (1.5%)      
     (71.6%)      
     (25.4%)      
       (0%) 

       (0.5%)        
       (0.5%)        
      (25.9%)      
       (9.2%)        
       (0%) 

Number of 
requested 
records (118) - 
all 
organisations/ 
companies/ 
public 
authorities   
54 
2 

32 

11 

1 
18 

% Total n° of 
organisations 
(118) 

% Total n° of 
respondents 
(185) 

     (45.8%)      
     (1.7%)      

      (29.2%)      
       (1.1%)        

     (27.1%)      

      (17.3%)      

     (9.3%)      

       (5.9%)        

     (0.8%)      
     (15.3%)      

       (0.5%)        
       (9.7%)        

  Under 18 
  18-24 
  25-44 
  45-64 
  65+ 

  B. Organisations 

1.c Type of organisation 

  Private company 
  NRA (national regulatory authority) 

(→ go to question 1.f) 

  Public administration (→ go to 

question 1.f) 

  NGO (non-governmental 

organisation) (→ go to question 1.e) 
  Trade union (→ go to question 1.e) 
  Professional association (→ go to 

question 1.e) 

- Companies 

1.d Number of employees in your organisation 

  Self-employed 
  1-9 
  10-49 
  50-249 
  250-499 
  500+ 

Number of 
requested 
records (54 
companies) 
1 
2 
10 
9 
5 
27 

% Total n° of 
companies 
(54)      

% Total n° of 
organisations 
(118)      

     (1.9%)      
     (3.7%)      
     (18.5%)      
     (16.7%)      
     (9.3%)      
     (50%)      

       (0.8%)        
       (1.7%)        
       (8.5%)        
       (7.6%)        
       (4.2%)        
      (22.9%)      

1.e Which sector(s) do you operate in/do you represent? 

54 

45

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
Number of 
records (119) - 
54 companies 
invited to select 
one or more 
sectors 
  Water distribution 
22 
  Waste water and sewage processing  11 
  Waste treatment 
  Energy or heating services 
  Transport (railway, tramway, bus, 

6 
18 
15 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

2 
2 
0 
3 

3 
4 

6 
4 

2 
5 
1 

  Research and laboratory services 
  Other (please specify) 

3 
12 

1.f Scope of activity 

% Total sectors recorded (119)    

18,5% 
9,2% 
5,0% 
15,1% 
12,6% 

1,7% 
1,7% 
0,0% 
2,5% 

2,5% 
3,4% 

5,0% 
3,4% 

1,7% 
4,2% 
0,8% 

2,5% 
10,1% 

  Local/Regional 
  National 
  European 
  World 

Number of 
requested 
records (54 
companies) 
15 
18 
9 
12 

% Total n° of 
companies 
(54)      

% Total n° of 
organisations 
(118)      

     (27.8%)      
     (33.3%)      
     (16.7%)      
     (22.2%)      

      (12.7%)      
      (15.3%)      
       (7.6%)        
      (10.2%)      

- National Regulatory Authorities (NRA)

1.f Scope of activity 

  Local/Regional 
  National 

Number of 
requested 
records (2 
NRA) 
1 
1 

% Total n° of 
NRA (2)      

% Total n° of 
organisations 
(118)      

     (50%)      
     (50%)      

       (0.8%)        
       (0.8%)        

119 

46

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
  European 
  World 

0 
0 

       (0%) 
       (0%) 

       (0%) 
       (0%) 

2 

- Public administrations 

1.f Scope of activity 

  Local/Regional 
  National 
  European 
  World 

- NGO 

Number of 
requested 
records (32 
public 
administrations) 
17 
12 
1 
2 

% Total n° of 
public 
administration
s (32)      

% Total n° of 
organisations 
(118)      

     (53.1%)      
     (37.5%)      
     (3.1%)      
     (6.2%)      

      (14.4%)      
      (10.2%)      
       (0.8%)        
       (1.7%)        

32 

1.e Which sector(s) do you operate in/do you represent? 

Number of 
records (11) - 
11 NGOs 
invited to select 
one or more 
sectors 
  Water distribution 
0 
  Waste water and sewage processing  0 
0 
  Waste treatment 
0 
  Energy or heating services 
1 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

3 
0 
0 
3 

1 
1 

0 
0 

0 
0 
0 

0 
2 

% Total sectors recorded (11)  

0,0% 
0,0% 
0,0% 
0,0% 
9,1% 

27,3% 
0,0% 
0,0% 
27,3% 

9,1% 
9,1% 

0,0% 
0,0% 

0,0% 
0,0% 
0,0% 

0,0% 
18,2% 

11 

47

 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1.f Scope of activity 

  Local/Regional 
  National 
  European 
  World 

- Trade Unions 

Number of 
requested 
records (11 
NGOs) 

2 
6 
0 
3 

% Total n° of 
NGOs (11)      

% Total n° of 
organisations 
(118)      

     (18.2%)      
     (54.5%)      
       (0%) 
     (27.3%)      

       (1.7%)        
       (5.1%)        
       (0%) 
       (2.5%)        

1.e Which sector(s) do you operate in/do you represent? 

Number of 
records (1) - 1 
trade union 
invited to select 
one or more 
sectors 
  Water distribution 
0 
  Waste water and sewage processing  0 
0 
  Waste treatment 
0 
  Energy or heating services 
0 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

0 
0 
0 
0 

0 
0 

0 
0 

0 
0 
0 

0 
1 

1.f Scope of activity 

% Total sectors recorded (1)      

0% 
0% 
0% 
0% 
0% 

0% 
0% 
0% 
0% 

0% 
0% 

0% 
0% 

0% 
0% 
0% 

0% 
(100%) 

Number of 
requested 
records (1 trade 
union) 

% Total n° of 
trade union (1) 

% Total n° of 
organisations 
(118)      

48

 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
  Local/Regional 
  National 
  European 
  World 

- Professional 
associations 

0 
1 
0 
0 

       (0%) 
     (100%)      
       (0%) 
       (0%) 

       (0%) 
       (0.8%)        
       (0%) 
       (0%) 

1.e Which sector(s) do you operate in/do you represent? 

% Total sectors recorded (52)     

Number of 
records (52) - 
18 professional 
associations 
invited to select 
one or more 
sectors 

  Water distribution 
7 
  Waste water and sewage processing  7 
6 
  Waste treatment 
5 
  Energy or heating services 
5 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

3 
2 
0 
1 

1 
1 

2 
1 

1 
3 
0 

0 
7 

1.f Scope of activity 

13,5% 
13,5% 
11,5% 
9,6% 
9,6% 

5,8% 
3,8% 
0,0% 
1,9% 

1,9% 
1,9% 

3,8% 
1,9% 

1,9% 
5,8% 
0,0% 

0,0% 
13,5% 

  Local/Regional 
  National 

Number of 
requested 
records (18 
professional 
associations) 
3 
10 

% Total n° of 
professional 
associations 
(18)      

% Total n° of 
organisations 
(118)      

     (16.7%)      
     (55.6%)      

       (2.5%)        
       (8.5%)        

52 

49

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
  European 
  World 

3 
2 

     (16.7%)      
     (11.1%)      

       (2.5%)        
       (1.7%)        

2. Country of residence or where your organisation/company is based 

Number of 
requested 
records (185) - 
All respondents 

% Total n° of respondents 
(185)  

  Austria 
  Belgium 
  Bulgaria 
  Cyprus 
  Czech Republic 
  Germany 
  Denmark 
  Estonia 
  Greece 
  Spain 
  Finland 
  France 
  Hungary 
Ireland 
Italy 
  Lithuania 
  Luxemburg 
  Latvia 
  Malta 
  Netherlands 
  Poland 
  Portugal 
  Romania 
  Sweden 
  Slovenia 
  Slovakia 
  United Kingdom 

Iceland 
  Lichtenstein 
  Norway 
  Switzerland 
  Other 

4 
5 
13 
0 
4 
53 
1 
0 
1 
7 
0 
16 
1 
2 
14 
2 
1 
0 
0 
2 
13 
17 
11 
2 
0 
1 
13 
1 
0 
1 
0 
0 

     (2.2%)      
     (2.7%)      
     (7%)      
       (0%) 
     (2.2%)      
     (28.6%)      
     (0.5%)      
       (0%) 
     (0.5%)      
     (3.8%)      
       (0%) 
     (8.6%)      
     (0.5%)      
     (1.1%)      
     (7.6%)      
     (1.1%)      
     (0.5%)      
       (0%) 
       (0%) 
     (1.1%)      
     (7%)      
     (9.2%)      
     (5.9%)      
     (1.1%)      
       (0%) 
     (0.5%)      
     (7%)      
     (0.5%)      
       (0%) 
     (0.5%)      
       (0%) 
       (0%) 

II — KNOWLEDGE OF AND EXPERIENCE WITH CONCESSIONS 

3. Which of the following statements about public contracts and concessions is correct? 

Number of 
requested 
records (185) - 
All respondents 

% Total n° of respondents 
(185)  

185 

50

 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
In concessions, responsibility for 
exploitation of works/services is 
transferred from the public authority 
to the private operator 

In concessions, the concession-
holder always breaks even on the 
investment made 

In concessions, the public authority 
never pays for the works/services 
provided  

In public contracts, only the public 
authority pays for the works/services 
provided 

  Don’t know 

160 

     (86.5%)      

4 

8 

7 

6 

     (2.2%)      

     (4.3%)      

     (3.8%)      

     (3.2%)      

185 

4. Which of the sentences below correctly describes the present EU legal situation? 

Number of 
requested 
records (185) - 
All respondents 

% Total n° of respondents 
(185)  

41 

20 

     (22.2%)      

     (10.8%)      

106 

     (57.3%)      

  Works and services concessions are 
regulated only by the principles of 
transparency and equal treatment in 
the Treaty on the Functioning of the 
European Union 

  Works and services concessions are 
regulated by some of the rules in the 
Directive on coordination of 
procedures for the award of public 
contracts 

  Works concessions are regulated by 
some of the rules in the Directive on 
coordination of procedures for the 
award of public contracts and 
services concessions by the general 
principles in the Treaty on the 
Functioning of the European Union 

  Services concessions are not 

subject to EU law 

  Don’t know 

8 

10 

     (4.3%)      

     (5.4%)      

185 

5. Please indicate the sectors in which you have heard of concession agreements in 
your Member State. 

Number of 
records (1144) - 
185 
respondents 
invited to select 
one or more 
sectors 
124 

  Water distribution 
  Waste water and sewage processing  97 
87 
  Waste treatment 

% Total sectors recorded 

(1144)      

10,8% 
8,5% 
7,6% 

51

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Energy or heating services 
  Transport (railway, tramway, bus, 

85 
122 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 
  Don’t know 

72 
81 
28 
36 

43 
35 

97 
50 

39 
88 
18 

13 
26 
3 

7,4% 
10,7% 

6,3% 
7,1% 
2,4% 
3,1% 

3,8% 
3,1% 

8,5% 
4,4% 

3,4% 
7,7% 
1,6% 

1,1% 
2,3% 
0,3% 

1144  

6. Are any works or services concession-holders from other States active in your 
area/region? 

  Yes 
  No 
  Don’t know 

Number of 
requested 
records (185) - 
All respondents 

98 
23 
64 

% Total n° of respondents 
(185)  

     (53%)      
     (12.4%)      
     (34.6%)      

185 

6bis. Please indicate the State(s) of origin of the concession-holder referred to above 

  Austria 
  Belgium 
  Bulgaria 
  Cyprus 
  Czech Republic 
  Germany 
  Denmark 

Number of 
records (229) - 
Those who 
answered 'Yes' 
to Q6 (98) were 
invited to select 
one or more 
country/ies 

6 
5 
1 
0 
3 
26 
5 

% Total n° of service 
concession-holders recorded 
(229) 

2,6% 
2,2% 
0,4% 
0,0% 
1,3% 
11,4% 
2,2% 

52

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Estonia 
  Greece 
  Spain 
  Finland 
  France 
  Hungary 
Ireland 
Italy 
  Lithuania 
  Luxemburg 
  Latvia 
  Malta 
  Netherlands 
  Poland 
  Portugal 
  Romania 
  Sweden 
  Slovenia 
  Slovakia 
  United Kingdom 

Iceland 
  Lichtenstein 
  Norway 
  Switzerland 
  Other (non-EEA State(s), please 

specify) 

1 
2 
25 
1 
60 
2 
2 
11 
1 
3 
1 
1 
11 
6 
7 
2 
6 
1 
2 
23 
1 
1 
1 
3 
9 

0,4% 
0,9% 
10,9% 
0,4% 
26,2% 
0,9% 
0,9% 
4,8% 
0,4% 
1,3% 
0,4% 
0,4% 
4,8% 
2,6% 
3,1% 
0,9% 
2,6% 
0,4% 
0,9% 
10,0% 
0,4% 
0,4% 
0,4% 
1,3% 
3,9% 

6ter. Please indicate the sector of activity of the concession-holder referred to above 

% Total sectors recorded (313)    

Number of 
records (313) - 
Those who 
answered 'Yes' 
to Q6 (98) were 
invited to select 
one or more 
sector(s) 

  Water distribution 
62 
  Waste water and sewage processing  50 
29 
  Waste treatment 
33 
  Energy or heating services 
37 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 

12 
13 
3 
5 

7 
4 

19,8% 
16,0% 
9,3% 
10,5% 
11,8% 

3,8% 
4,2% 
1,0% 
1,6% 

2,2% 
1,3% 

229 

53

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

23 
5 

5 
14 
4 

3 
4 

7. What is your experience with concessions? 

7,3% 
1,6% 

1,6% 
4,5% 
1,3% 

1,0% 
1,3% 

313 

Number of 
requested 
records (185) - 
All respondents 

% Total n° of respondents 
(185)  

I am a user of concession services 
(*) 
I work for a company which has 
been granted a concession 

32 

36 

  My business holds or has applied for 

15 

a concession 
I represent an entity awarding 
concessions (*) 
I deal with concessions regulations 
(*) 
I represent labour interests in 
connection with concessions (*) 
I have no experience with 
concessions (**) 

  Other (please specify) (*) 

15 

33 

2 

39 

13 

     (17.3%)      

     (19.5%)      

     (8.1%)      

     (8.1%)      

     (17.8%)      

     (1.1%)      

     (21.1%)      

     (7%)      

185 

8. Please indicate the sector in which you have most experience in dealing with 
services concession in your Member State. 

% Total sectors recorded (95) 

Number of 
requested 
records (95) - 
those who 
answered by (*) 
to Q 7 

  Water distribution 

21 

  Waste water and sewage processing  7 
7 
  Waste treatment 
5 
  Energy or heating services 
15 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 

2 
2 
0 

22,11% 

7,37% 
7,37% 
5,26% 
15,79% 

2,11% 
2,11% 
0,00% 

54

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
     
 
 
  
     
 
 
 
 
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

3 

1 
3 

10 
3 

2 
5 
0 

0 
8 

3,16% 

1,05% 
3,16% 

10,53% 
3,16% 

2,11% 
5,26% 
0,00% 

0,00% 
8,42% 

8bis.Please give your assessment of the services provided by concession-holders in the 
sector you have chosen in the preceding question. 

Number of 
requested 
records (95) - 
those who 
answered by (*) 
to Q 7 
55,00 

6,00 

  Both the price and the quality of the 

service are acceptable 
  The quality of the service is 
insufficient but the price is 
acceptable 

  The quality of the service is good but 

10,00 

the price is too high 
I am dissatisfied with both the price 
and the quality of the service 

  Don’t know 

7,00 

17,00 

% Total requested records(95) 

57,89% 

6,32% 

10,53% 

7,37% 

17,89% 

94 

95 

8ter.In your opinion what could be the main reasons for the low quality or high price of the 
services provided by concession-holders in the chosen sector? Please rank them in decreasing 
order of importance. 
Important 

Don't know 

Very 
important 

Little 
important

Not 
important 

% Total 
records (23)

% Total 
records (23) 

43,48% 

17,39% 

% Total 
records 
(23) 
17,39% 

% Total 
records 
(23) 
17,39% 

% Total 
records (23) 

4,35% 

  Requested records (23) - 
those who are 
dissatisfied with either 
the quality, the price or 
both (see answers to Q 
8bis) 
Insufficient supervision of 
the concession-holder's 
activities by the public 
authorities 

  Lack of investment in 
infrastructure by the 
concession-holders 
  Absence of competition 

30,43% 

17,39% 

39,13% 

13,04% 

0,00% 

34,78% 

21,74% 

8,70% 

34,78% 

0,00% 

55

 
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
     
 
     
 
 
 
 
 
  
  
  
  
     
 
 
     
 
 
  
     
 
     
 
     
 
     
 
 
     
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Other (Please specify) 

21,74% 

0,00% 

0,00% 

8,70% 

13,04% 

   9. Please indicate a second sector in which you also have experience in dealing with 

services concession in your Member State. 

Number of 
requested 
records 

% Requested 
records(95) - 
those who 
answered by 
(*) to Q 7 

% of 
total number 
records(185)   

   Water distribution 
   Waste water and sewage processing  12 
   Waste treatment 
   Energy or heating services 
   Transport (railway, tramway, bus, 

5 
3 
11 

7 

automated systems, cable) 

   Port services 
   Airport services 
   Postal services 
   Education (administration of schools, 
specialised education, training or 
catering) 

   Health services 
   Social services (nurseries, 

employment coaching, care of the 
elderly) 

   Motorway operation 
   Sports and leisure facilities 

(administration of sports halls, library 
services) 

   Catering services 
   Car parks 
   Judiciary systems (administration of 

courts or prisons) 

   Research and laboratory services 

   Other (please specify) 

2 
4 
1 
1 

1 
1 

11 
2 

2 
7 
0 

0 

5 

9,33% 
16,00% 
6,67% 
4,00% 
14,67% 

2,67% 
5,33% 
1,33% 
1,33% 

1,33% 
1,33% 

14,67% 
2,67% 

2,67% 
9,33% 
0,00% 

0,00% 

6,67% 

3,78% 
6,49% 
2,70% 
1,62% 
5,95% 

1,08% 
2,16% 
0,54% 
0,54% 

0,54% 
0,54% 

5,95% 
1,08% 

1,08% 
3,78% 
0,00% 

0,00% 

2,70% 

75 

   9bis. Please give your assessment of the services provided by concession-holders in the 

sector you have chosen in the preceding question. 

   Both the price and the quality of the 

45 

55,56% 

24,32% 

Number of 
requested 
records 

% Requested 
records(81)      

% of 
total number 
records(185)   

service are acceptable 
   The quality of the service is 
insufficient but the price is 
acceptable 

4 

4,94% 

2,16% 

   The quality of the service is good but 

5 

6,17% 

2,70% 

the price is too high 
I am dissatisfied with both the price 
and the quality of the service 

   Don’t know 

13 

14 

16,05% 

7,03% 

17,28% 

7,57% 

81 

56

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
  
 
 
 
 
 
 
 
 
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
9ter.In your opinion what could be the main reasons for the low quality or high price of the services 
provided by concession-holders in the chosen sector? Please rank them in decreasing order of 
importance. 
Important 

Very important 

Don't know 

Little 
important 

Not 
important 

   Requested records (22) 
- those who are 
dissatisfied with either 
the quality, the price or 
both (see answers to Q 
9bis) 

Insufficient supervision 
of the concession-
holder's activities by the 
public authorities 
   Lack of investment in 
infrastructure by the 
concession-holders 
   Absence of competition 
   Other (Please specify) 

% requested (22) 

% 
requested 
(22) 

% requested 
(22) 

54,55% 

22,73% 

9,09% 

% 
requested 
(22) 
13,64% 

% requested 
(22) 

0,00% 

50,00% 

13,64% 

22,73% 

9,09% 

4,55% 

45,45% 
18,18% 

18,18% 
0,00% 

22,73% 
0,00% 

13,64% 
4,55% 

0,00% 
13,64% 

10. Do you think that opting for a concession rather than direct provision by public 
authorities could help to secure/speed up new investment in public 
infrastructure/services? 

Number of 
records (105) - 
in principle, 
those who 
answered by (*) 
to Q 7 
57 
34 
14 

% total records(105)      

54,3% 
32,4% 
13,3% 

105 

  Yes 
  No 
  Don’t know 

10bis. Please choose one or more of the following reasons: 

% Requested 
records(113)     

% of 
total number 
records(185)   

Number of 
requested 
records (57) - 
Those who 
answered 'Yes' 
to Q 10 

  Concessions provide an additional 

42 

37,17% 

      (22.7%)      

source of capital and relieve 
immediate pressure on public 
finances by spreading the cost of 
financing infrastructure over the 
lifetime of the asset 

  Better risk-sharing between the 

29 

25,66% 

      (15.7%)      

public and private sectors permits 
more efficient risk management and 
reduces the overall cost of projects 

  The private sector has a better track 
record of on-time and on-budget 
delivery of investments than the 
public sector 

25 

22,12% 

      (13.5%)      

57

 
 
  
  
  
  
  
 
 
 
 
  
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  The private sector is in a better 
position to make investments to 
boost sustainability and innovation to 
meet the socio-economic challenges 
facing society. 

17 

15,04% 

       (9.2%)        

113 

11.Imagine your local government is awarding a services concession for waste management in your district. 
In your view, to what extent are the following aspects of the service important (please rank them from 1 
(very important) to 6 (not important))?  
3 

4 

2 

5 

  % Requested 

1 
(Very 
important) 

6 
(Not 
important) 

Don't 
know/ 
No 
answer 

38,81% 
70,15% 
49,25% 

34,33% 
21,64% 
24,63% 

17,91% 
4,48% 
10,45% 

2,99% 
0,75% 
5,22% 

0,75% 
0,75% 
2,99% 

2,24% 
0,75% 
2,99% 

2,99% 
1,49% 
4,48% 

10,45% 

8,21% 

10,45% 

9,70% 

8,96% 

45,52% 

6,72% 

23,88% 

29,10% 

19,40% 

9,70% 

5,97% 

5,97% 

5,97% 

53,73% 

20,90% 

11,19% 

6,72% 

2,99% 

0,75% 

3,73% 

records (134) - 
those who 
answered by (*) or 
(**) to Q 7 

  Price 
  Quality 
  Continuity in 
provision of 
services 
  Origin of the 
provider 

  Creating local 
employment 

  Meeting 

Environmental 
standards 

III — ASSESSMENT OF PROCEDURES FOR AWARDING CONCESSIONS 

12. Have you heard of service concessions being awarded in your country or in other EU 
Member States without any publication/transparency? 

  No 
  Yes 

Number of 
requested 
records 

116 
69 

% Requested 
records(185)     

% of 
total number 
records(185)   

     (62.7%)      
     (37.3%)      

      (62.7%)      
      (37.3%)      

185 

12bis. Please indicate the sector(s) concerned: 

Number of 
requested 
records 

27 
  Water distribution 
  Waste water and sewage processing  15 
28 
  Waste treatment 
14 
  Energy or heating services 
31 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 

8 
10 
4 

% Requested 
records(69)      

     (39.1%)      
     (21.7%)      
     (40.6%)      
     (20.3%)      
     (44.9%)      

% of 
total number 
records(185)   

      (14.6%)      
       (8.1%)        
      (15.1%)      
       (7.6%)        
      (16.8%)      

     (11.6%)      
     (14.5%)      
     (5.8%)      

       (4.3%)        
       (5.4%)        
       (2.2%)        

58

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

6 

8 
6 

13 
8 

5 
15 
1 

1 
1 

     (8.7%)      

       (3.2%)        

     (11.6%)      
     (8.7%)      

       (4.3%)        
       (3.2%)        

     (18.8%)      
     (11.6%)      

       (7%)      
       (4.3%)        

     (7.2%)      
     (21.7%)      
     (1.4%)      

       (2.7%)        
       (8.1%)        
       (0.5%)        

     (1.4%)      
     (1.4%)      

       (0.5%)        
       (0.5%)        

201 

12ter. If possible, could you also indicate the value or (if many) the average value of 
the contract(s) concerned? 

  < € 200 000 
  € 200 000 – € 799 999 
  € 800 000 – € 2 499 999 
  € 2 500 000 – € 4 999 999 
  ≥ € 5 000 000 
  Don't know 

Number of 
requested 
records 

2 
2 
1 
0 
22 
42 

% Requested 
records(69)      

     (2.9%)      
     (2.9%)      
     (1.4%)      
       (0%) 
     (31.9%)      
     (60.9%)      

% of 
total number 
records(185)   

       (1.1%)        
       (1.1%)        
       (0.5%)        
       (0%) 
      (11.9%)      
      (22.7%)      

13. At what level are the services concessions normally published in your country? 

  Local 
  National 

International 

  They are never published 
  Don’t know 

Number of 
requested 
records 

22 
78 
64 
5 
16 

% Requested 
records(185)     

     (11.9%)      
     (42.2%)      
     (34.6%)      
     (2.7%)      
     (8.6%)      

% of 
total number 
records(185)   

      (11.9%)      
      (42.2%)      
      (34.6%)      
       (2.7%)        
       (8.6%)        

14. Have you heard of any public contracts which have been  awarded as services 
concessions or works concessions in your country or in other EU Member States? 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

  No 
  Yes 
  Don’t know: it is difficult to 

50 
85 
50 

distinguish between public contracts 
and concessions 

     (27%)      
     (45.9%)      
     (27%)      

       (27%)      
      (45.9%)      
       (27%)      

69 

185 

185 

59

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
14bis. Please indicate the sector(s) concerned: 

Number of 
requested 
records 

  Water distribution 
46 
  Waste water and sewage processing  39 
38 
  Waste treatment 
36 
  Energy or heating services 
47 
  Transport (railway, tramway, bus, 

automated systems, cable) 

  Port services 
  Airport services 
  Postal services 
  Education (administration of schools, 
specialised education, training or 
catering) 

  Health services 
  Social services (nurseries, 

employment coaching, care of the 
elderly) 

  Motorway operation 
  Sports and leisure facilities 

(administration of sports halls, library 
services) 

  Catering services 
  Car parks 

Judiciary systems (administration of 
courts or prisons) 

  Research and laboratory services 
  Other (please specify) 

20 
27 
12 
11 

21 
8 

40 
13 

17 
30 
8 

4 
3 

% Requested 
records(85)      

     (54.1%)      
     (45.9%)      
     (44.7%)      
     (42.4%)      
     (55.3%)      

% of 
total number 
records(185)   

      (24.9%)      
      (21.1%)      
       (20.5%)      
      (19.5%)      
      (25.4%)      

     (23.5%)      
     (31.8%)      
     (14.1%)      
     (12.9%)      

       (10.8%)      
      (14.6%)      
       (6.5%)        
       (5.9%)        

     (24.7%)      
     (9.4%)      

      (11.4%)      
       (4.3%)        

     (47.1%)      
     (15.3%)      

      (21.6%)      
       (7%)      

     (20%)      
     (35.3%)      
     (9.4%)      

       (9.2%)        
      (16.2%)      
       (4.3%)        

     (4.7%)      
     (3.5%)      

       (2.2%)        
       (1.6%)        

420 

14ter. If possible, could you also indicate the value or (if many) the average value of 
the contract(s) concerned? 

  < € 200 000 
  € 200 000 – € 799 999 
  € 800 000 – € 2 499 999 
  € 2 500 000 – € 4 999 999 
  ≥ € 5 000 000 
  Don't know 

Number of 
requested 
records 

3 
2 
5 
3 
40 
32 

% Requested 
records(85)      

     (3.5%)      
     (2.4%)      
     (5.9%)      
     (3.5%)      
     (47.1%)      
     (37.6%)      

% of 
total number 
records(185)   

       (1.6%)        
       (1.1%)        
       (2.7%)        
       (1.6%)        
      (21.6%)      
      (17.3%)      

15. In your view, do the national rules/practices on publication of service concessions 
in your country ensure that sufficient information is provided to allow all interested EU 
economic operators to participate in the award procedure? 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

85 

60

 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
  Yes 
  No 
  Don’t know 

130 
31 
24 

     (70.3%)      
     (16.8%)      
     (13%)      

      (70.3%)      
      (16.8%)      
       (13%)      

185 

16. In your view, are the existing national rules/practices in your country adequate to 
ensure equal treatment of EU economic operators in procedures to award works 
concessions and services concessions? 

(a) Services concessions 

  Yes 
  No 
  Don’t know 

(b) Works concessions 

  Yes 
  No 
  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

135 
34 
16 

     (73%)      
     (18.4%)      
     (8.6%)      

       (73%)      
      (18.4%)      
       (8.6%)        

185 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

144 
20 
21 

     (77.8%)      
     (10.8%)      
     (11.4%)      

      (77.8%)      
      (10.8%)      
      (11.4%)      

185 

17. Do you believe that diverging national legal provisions and practices governing 
award of works concessions and services concessions are an obstacle to cross-border 
economic activity? 

  No 
  Yes 
  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

89 
60 
36 

     (48.1%)      
     (32.4%)      
     (19.5%)      

      (48.1%)      
      (32.4%)      
      (19.5%)      

185 

18. In your view, do national rules in your country offer effective remedies to all 
parties wishing to challenge decisions awarding service concessions? 

  No 
  Yes 
  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

46 
104 
35 

     (24.9%)      
     (56.2%)      
     (18.9%)      

       (24.9%)      
      (56.2%)      
      (18.9%)      

185 

IV — IMPACT OF POSSIBLE EU LEGISLATION ON CONCESSIONS 

19. Do you agree that publication of notices on the intention to award services 
concessions in the Official Journal of the European Union would help to increase 
transparency? 

61

 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  No 
  Yes 
  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

60 
114 
11 

     (32.4%)      
     (61.6%)      
     (5.9%)      

      (32.4%)      
      (61.6%)      
       (5.9%)        

185 

20. What effect could EU-wide competition for services concessions have on the quality 
and price of services you use? 

  A) On price: 

  None 
  Decrease 
Increase 
  Don’t know 
  Other 

  B) On quality: 

  None 
  Deteriorate 
Improve 
  Don’t know 
  Other 

Number of 
requested 
records 

72 
60 
29 
22 
2 

Number of 
requested 
records 

41 
49 
67 
26 
2 

% Requested 
records(185)     

     (38.9%)      
     (32.4%)      
     (15.7%)      
     (11.9%)      
     (1.1%)      

% of 
total number 
records(185)   

      (38.9%)      
      (32.4%)      
      (15.7%)      
      (11.9%)      
       (1.1%)        

% Requested 
records(185)     

     (22.2%)      
     (26.5%)      
     (36.2%)      
     (14.1%)      
     (1.1%)      

% of 
total number 
records(185)   

      (22.2%)      
      (26.5%)      
      (36.2%)      
      (14.1%)      
       (1.1%)        

21. What effect could clear and appropriate EU rules of procedure on the award of 
works and services concessions have on provision of the works/services? 

  A) On Price: 

  None 
  Decrease 
Increase 
  Don’t know 
  Other 

  B) On quality: 

  None 

Number of 
requested 
records 

64 
48 
31 
41 
1 

% Requested 
records(185)     

     (34.6%)      
     (25.9%)      
     (16.8%)      
     (22.2%)      
     (0.5%)      

% of 
total number 
records(185)   

       (34.6%)      
      (25.9%)      
      (16.8%)      
      (22.2%)      
       (0.5%)        

Number of 
requested 
records 

57 

% Requested 
records(185)     

% of 
total number 
records(185)   

     (30.8%)      

      (30.8%)      

185 

185 

185 

62

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
  Deteriorate 
Improve 
  Don’t know 
  Other 

34 
59 
32 
3 

     (18.4%)      
     (31.9%)      
     (17.3%)      
     (1.6%)      

      (18.4%)      
      (31.9%)      
      (17.3%)      
       (1.6%)        

185 

22. Overall, who will benefit most from a greater competition for the award of services concessions ? 
Please rank in decreasing order of importance from 1 to 6):  

  % Requested 
records (185) 

  Users 
  Companies 
  Employees 
  Taxpayers 
  Public Authorities 
  Other  

1 
(Very 
important) 

31,89% 
19,46% 
3,78% 
16,22% 
21,08% 
4,86% 

2 

3 

4 

17,84% 
22,70% 
9,73% 
18,92% 
20,00% 
0,54% 

8,65% 
20,00% 
20,54% 
12,97% 
17,84% 
1,62% 

9,19% 
11,89% 
20,00% 
8,65% 
10,27% 
0,00% 

5 

6 
(Not 
importa
nt) 
4,86% 
22,16% 
8,11% 
9,73% 
14,05%  27,03% 
21,08%  16,22% 
13,51%  11,35% 
3,78% 
0,54% 

Don't 
know/ 
No 
answer 
5,41% 
8,11% 
4,86% 
5,95% 
5,95% 
13,51%

23. Greater competition for award of services concessions will allow greater and 
speedier delivery of public investment. 

  Strongly agree 
  Agree 
  Disagree 
  Strongly disagree 
  Don’t know 

Number of 
requested 
records (185) 

% Requested 
records(185)     

17 
73 
47 
35 
13 

     (9.2%)      
     (39.5%)      
     (25.4%)      
     (18.9%)      
     (7%)      

% of 
total number 
records(185)   

       (9.2%)        
      (39.5%)      
      (25.4%)      
      (18.9%)      
       (7%)      

24. EU legislation on services concessions ensuring Europe-wide transparency and equal 
opportunities for all EU operators would improve delivery of the best value-for-money. 

  Strongly agree 
  Agree 
  Disagree 
  Strongly disagree 
  Don’t know 

Number of 
requested 
records (185) 

% Requested 
records(185)     

23 
63 
27 
38 
34 

     (12.4%)      
     (34.1%)      
     (14.6%)      
     (20.5%)      
     (18.4%)      

% of 
total number 
records(185)   

      (12.4%)      
      (34.1%)      
      (14.6%)      
      (20.5%)      
      (18.4%)      

25. EU legislation on services concessions ensuring Europe-wide transparency and equal 
opportunities for all EU operators would encourage public authorities to make greater 
use of concessions to provide public services. 

  Strongly agree 
  Agree 
  Disagree 

Number of 
requested 
records (185) 

% Requested 
records(185)     

% of 
total number 
records(185)   

16 
72 
37 

     (8.6%)      
     (38.9%)      
     (20%)      

       (8.6%)        
      (38.9%)      
       (20%)      

185 

185 

63

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Strongly disagree 
  Don’t know 

36 
24 

     (19.5%)      
     (13%)      

      (19.5%)      
       (13%)      

185 

26. In your opinion, would opting for concessions to provide public services rather than 
direct provision of the services by public authorities have any impact on employment 
in the sectors concerned? 

  Yes 
  No 
  Don’t know 

Number of 
requested 
records (185) 

% Requested 
records(185)     

% of 
total number 
records(185)   

95 
44 
46 

     (51.4%)      
     (23.8%)      
     (24.9%)      

      (51.4%)      
      (23.8%)      
      (24.9%)      

185 

26bis. What impact on employment would you expect? 

Number of 
requested 
records (95) - 
those who 
answered 'yes' 
to Q 26 
39 

% Requested 
records(95)      

% of 
total number 
records(185)   

     (41.1%)      

      (21.1%)      

  The number of local jobs is likely to 

increase 

  The number of local jobs is likely to 

49 

     (51.6%)      

      (26.5%)      

decrease 
  Don't know 

7 

     (7.4%)      

       (3.8%)        

95 

26ter. What impact on working conditions would you expect? 

Number of 
requested 
records (95) - 
those who 
answered 'yes' 
to Q 26 
53 

% Requested 
records(95)      

% of 
total number 
records(185)   

     (55.8%)      

      (28.6%)      

  The conditions of local employment 

are likely to improve 

  The conditions of local employment 

30 

     (31.6%)      

      (16.2%)      

are likely to deteriorate 

  Don't know 

12 

     (12.6%)      

       (6.5%)        

95 

27. In your view, would greater competition for award of services concessions have any 
impact on employment in the sectors concerned? 

  Yes 
  No 
  Don't know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

89 
37 
59 

     (48.1%)      
     (20%)      
     (31.9%)      

      (48.1%)      
       (20%)      
      (31.9%)      

185 

27bis. What impact on employment would you expect? 

64

 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
Number of 
requested 
records (89) - 
those who 
answered 'yes' 
to Q 27 
34 

% Requested 
records(89)      

% of 
total number 
records(185)   

     (38.2%)      

      (18.4%)      

  The number of local jobs is likely to 

increase 

  The number of local jobs is likely to 

51 

     (57.3%)      

      (27.6%)      

decrease 
  Don't know 

4 

     (4.5%)      

       (2.2%)        

89 

27ter. What impact on working conditions would you expect? 

Number of 
requested 
records (89) - 
those who 
answered 'yes' 
to Q 27 
45 

% Requested 
records(89)      

% of 
total number 
records(185)   

     (50.6%)      

      (24.3%)      

  The conditions of local employment 

are likely to improve 

  The conditions of local employment 

34 

     (38.2%)      

      (18.4%)      

are likely to deteriorate 

  Don't know 

10 

     (11.2%)      

       (5.4%)        

89 

28. Many services of general interest (this means ‘market and non-market services 
which the public authorities class as being of general interest and subject to specific 
public-service obligations’, see the Green Paper on services of general interest 
(COM(2003) 270 final, paragraph 16) are presently provided by means of a concession. 
Do you expect greater competition for award of concessions to have any impact on 
access to these services? 

  Yes 
  No 
  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

69 
70 
46 

     (37.3%)      
     (37.8%)      
     (24.9%)      

      (37.3%)      
      (37.8%)      
      (24.9%)      

185 

28bis. What impact would you expect? 

Number of 
requested 
records 

% Requested 
records(69)      

% of 
total number 
records(185)   

  Accessibility will improve 
  Accessibility will deteriorate 
  Don't know 

58 
8 
3 

     (84.1%)      
     (11.6%)      
     (4.3%)      

      (31.4%)      
       (4.3%)        
       (1.6%)        

69 

29. What effect could clear and detailed EU rules on award of concessions have on 
provision of social services (such as education or health services)? 

  On price: 

65

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  None 
  Decrease 
Increase 
  Don’t know 

  On quality: 

  None 
  Deterioration 
Improvement 

  Don’t know 

  On accessibility: 

  None 
  Deterioration 
Improvement 

  Don’t know 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

42 
48 
33 
62 

     (22.7%)      
     (25.9%)      
     (17.8%)      
     (33.5%)      

      (22.7%)      
      (25.9%)      
      (17.8%)      
      (33.5%)      

185 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

37 
36 
59 
53 

     (20%)      
     (19.5%)      
     (31.9%)      
     (28.6%)      

       (20%)      
      (19.5%)      
       (31.9%)      
      (28.6%)      

185 

Number of 
requested 
records 

% Requested 
records(185)     

% of 
total number 
records(185)   

39 
26 
62 
58 

     (21.1%)      
     (14.1%)      
     (33.5%)      
     (31.4%)      

      (21.1%)      
      (14.1%)      
      (33.5%)      
      (31.4%)      

185 

66

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Annex I B 

Report on the targeted public consultation on concessions held between 5 August and 30 
September 2010 

Between  5  August  and  30  September  2010  the  Commission  services  run  a  consultation 
addressed  to  specific  groups  of  stakeholders  –  the  business  community,  the  contracting 
entities  and  the  social  partners.  In  essence,  it  aimed  to  learn  about  the  experience  of  these 
groups on concessions, to hear their views on the operation of the present rules and finally to 
gather suggestions for their future improvement. The replies provided will be published on the 
Commission's 
at 
http://ec.europa.eu/internal_market/consultations/2010/concessions_en.htm.  The  objective  of 
this report is to provide the outcome for each of these consultations.  

website 

A) The consultation of the business community 

It is noted that 62 stakeholders provided their input to this consultation. In particular, 14 came 
from a private company, 3 from a mixed capital company, 11 from a public company and 34 
provided  their  reply  on  behalf  of  the  industry  or  a  professional  association.  Only  7  replies 
came from SME's.  

The sectors most represented were transport, water distribution and waste water and sewage 
processing, waste treatment and energy or heating services. 

Replies originated from participants located in 20 different Member States. Germany, France 
and  Belgium  were,  by  far,  the  Member  States  submitting    the  highest  number  of  replies 
(45,1%, 33,8% and 19,3% of replies respectively). 

Out of those 62 respondents who make up this stakeholders group, 36 replied to the question 
on whether their company currently holds a concession, with 30 (83%) of those confirming , 
while the other 6 (17%) indicating the contrary. In addition, 33 respondents answered to the 
question on whether they have participated in a tendering procedure in a Member State other 
than  the  one  they  are  established.  Out  of  those,  15  (46%)  answered  positively  and  18 
negatively (54%). These figures show that a substantial part of the respondents have first hand 
knowledge of concessions and of tendering procedures.  

Concessions by number and value were considered to have a substantial economic importance 
in sectors such as energy,  transport and port services in  BE,  DE, DK, EL, ES,  FR, HU, IT, 
LV, NL, PL  and the UK. In addition concessions also have a significant economic weight in 
water distribution and waste water treatment sectors, waste treatment and motorways in ES, 
FR and DE. 

The majority of respondents considered that the case law of the CJEU on definition and award 
of  concessions  provided  sufficient  clarification  while  19%  considered  otherwise.  On  the 
guidance  provided  by  the  Commission  on  the  definition  and  application  of  the  Treaty 
principles 48% of the respondents considered it to be insufficient. 

67

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Furthermore, 15 respondents indicated that they are aware of entry barriers to the concession 
markets in the Member States, while 22 indicated that they are not. Hence out of the 37 who 
replied  to  this  question,  a  substantial  proportion  amounting  to  40,5%  indicated  that  entry 
barriers do exist.  

With regard to the advertisement practices for the award of concessions, and in particular the 
level at which publication usually takes place, the results of the group reveal that about half of 
the  publications  merely  take  place  at  a  local  or  regional  level,  while  only  one  quarter  takes 
place at international level. 

Concerning  the  question  on  the  possible  taking  place  of  direct  awards,  43  respondents 
answered to that. 26 (60%) of those indicated that they were not aware of any such practices 
while 17 (40%) indicated that they were actually well aware of their existence.  

In relation to the question whether the advertisement practice of service concessions is usually 
fair and transparent, out of the 36 respondents who answered to this, 8 (22%) indicated that it 
is not, while 28 respondents (78%) consider that it is. Nevertheless, these 28 constitute merely 
45%  of  all  the  respondents  in  the  group,  which  suggests  that  less  than  half  of  the  group 
considers  the  advertisement  practices  to  be  fair.  In  addition,  with  regard  to  the  question  of 
whether  the  information  is  easily  available  to  vigilant  non-national  operators,  the  results 
revealed  that  only  in  5  Member  States  this  was  the  case  (BE,  DE,  FR,  PT,  SE)  which 
corresponds to 19% of all the Member States. By contrast, for the large majority of Member 
States (18 – 67% thereof) the answer was negative suggesting that overall, at EU wide level, 
the information on concessions is not easily available to non-national operators.  

Furthermore,  9  out  of  the  40  respondents  who  answered  to  the  relevant  question  (23%) 
consider  the  diversity  of  national  rules  and  practices  to  be  an  obstacle  to  the  cross  border 
provision  of  services.  Then,  4  out  of  15  (21%)  consider  that  this  generates  additional  costs, 
while 3 out of 13 (19%) consider that this generates administrative burden.  

Moreover, 18 respondents (29% of the group), indicated that in the tendering procedures that 
they have participated in, there were also participants coming from other Member States. This 
constitutes evidence that there is already in place some cross border activity.  

On the procedures used for the award of concessions it seems that the negotiated procedure 
with publication (but not necessarily the one set out in the Public Procurement Directives) is 
the most commonly used (28 respondents from 8 Member States). It is followed by the open 
procedure (6 respondents from 4 Member States) and the restricted procedure (/ respondents 
from 3 member States) and a sui generis procedure (5 responents from 3 member States). In 
only  one  Member  State,  Germany,  is  the  negotiated  procedure  without  publication  of  a 
contract notice used (8 respondents). 

With  reference  to  the  most  important  features  of  fair  and  transparent  tender  procedures, 
publication  was  considered  the  most  important  (14  replies),  followed  by  negotiation  (11 
replies) and selection and award criteria (10 replies each). 

In  relation  to  the  question  of  whether  the  awarding  procedures  in  the  Member  States  are 
usually  fair  and  transparent,  the  replies  revealed  that  in  9  Member  States  that  was  the  case 
(including DE and FR), which corresponds to 33% of all the Member States. 35 respondents 

68

 
 
 
 
 
 
 
 
 
 
in  the  group  (62%  thereof)  did  not  answer  this  question.  For  17  Member  States,  no 
information was received on this point. 

On the key features of fair and transparent procedures missing  respondents had participated 
the most common referred one was selection criteria (8 replies originating from DE, ES, FR, 
IT, PT, SE and UK). In one case, UK, the missing key feature concerned award criteria.  

Concerning  the  average  duration  of  services  concessions  the  longest  duration  has  been 
reported in Germany (12 respondents pointing to concessions lasting 20 years or more and 8 
indicating concessions of 11 up to 10 years). In France the duration of concessions is evenly 
spread between concessions lasting up to 10 years and concessions of 20 years or more. Most 
respondents  noted  the  positive  impact  of  a  long  duration  (enough  to  recover  the  initial 
investment) on competition for the contract and on costs. In one case (DE)  the long duration 
was considered to have a negative impact making it difficult to enter the market. 

With  regard  to  the  question  concerning  the  effectiveness  of  the  remedies  system  in  the 
Member  States,  the  consultation  revealed  a  positive  picture  in  relation  to  6  Member  States 
(including  DE  and  FR),  which  corresponds  to  22%  of  all  the  Member  States.  Only  in  one 
Member State, Germany, some respondents considered the remedies system to be ineffective. 

The consultation also revealed that 38 o out of the 46 respondents (82,6%) who answered to 
the question consider that they find it not difficult to distinguish between public contracts and 
concessions  while  8  (17,3%)  considered  the  opposite.  In  addition,  25  out  of  the  62  people 
(40%) in this stakeholders group indicated that there are indeed shortcomings with the current 
definition  of  concessions  provided  in  EU  law,  while  another  11  people  in  the  group  (18%) 
indicated that they are fine with the definition but want it to be improved.  

The issue of public contracts being misattributed as concessions in order to elude detailed EU 
provisions  has  been  identified  by  the  Commission  services  as  one  of  the  most  burning 
problems which have to be addressed. The consultation revealed that 3 out of 33 respondents 
(9%) are actually aware of the existence of this phenomenon.  

On  the  existence  of  practices  or  market  structures  reducing  competition  between  tenderers 
most  respondents  (21)  were  not  aware  of  such  practices/structures  while  3  declared  to  be 
aware  of  those  cases:  two  of  collusion  between  established  organisations  in  Germany  and 
France  and one of existing oligopolies in Germany.  

Concerning the operation of the current rules on works concessions, the consultation revealed 
very positive results. In particular, with regard to the provision on mandatory publication, 20 
out of 21 respondents (95%) indicated that this provides a sufficient degree of transparency 
and  equal  treatment,  while  17  out  of  18  (94%)  consider  that  it  provides  legal  clarity. 
Concerning the provisions on time limits and additional works, 16 respondents  consider that 
these provide a sufficient degree of transparency and equal treatment with none considering 
otherwise,  while  14  respondents    consider  that  these  provide  legal  clarity  with  none 
considering otherwise. Finally, with regard to the provision on subcontracting, 15 respondents  
consider that this provides a sufficient degree of transparency and equal treatment with none 
considering otherwise, while 13 out of 14 respondents  (93%) consider that this provides legal 
clarity.  This  confirms  the  positive  assessment  made  by  this  group  of  the  present  rules  for 
awarding works concessions.  

69

 
 
 
 
 
 
 
 
 
 
With  regard  to  the  question  on  the  expected  impact  of  new  legislation  providing  for 
compulsory advertisement of service concessions at the European level, it should be pointed 
out  that  an  overall  negative  impact  is  expected  in  only  1  Member  State  (DE).  In  another 
Member State (FR) no impact is expected, while with regard to another 6 Member States (ES, 
IT, NL, PT, SK, UK) a positive overall impact is expected.  

With  regard  to  the  question  on  possible  shifts    on  services  directly  provided  by  contracting 
authorities  towards  concessions-based  provision  of  services  2  respondents  considered  that 
there would be a shift on the short term, 9 on the medium term and 3 on the long term. By 
contrast, only 6 respondents considered as likely the opposite shift (from concessions to direct 
provision of services) out of which 4 on the medium term. 

Concerning the question on whether the respondents expect that such a legislative provision 
would result in new entrants into the market, half of those who replied to this (18 out of 36) 
have  answered  positively.  Out  of  the  18  responding  positively,  16  considered  that  the  new 
entrants would be non-domestic companies, 10 domestic companies in new business areas, 13 
joint ventures and 2 SME's. 

Concerning the possible legislative content, the majority of those who replied to the relevant 
questions  indicated  that  they  are  clearly  in  favour  of  compulsory  publication  of  contract 
notices in the Official Journal of the EU (20 out of 37, that is 54% thereof), the possibility to 
directly award additional services to the original concession holder (20 out of 32, that is 63% 
thereof)  and  the  obligation  to  announce  qualification  criteria  (20  out  of  34,  that  is  59% 
thereof).  

In relation to the other possible provisions mentioned in the consultation, there appears to be 
no overall support in this group.  

Concerning , the obligation to respect minimum deadlines, 12 out of the 32 respondents who 
answered this (38% thereof) indicated their support. In addition, with regard to the obligation 
of  the  concession  holder  to  respect  the  principle  of  non-discrimination  while  selecting  sub-
contractors, 6 out of the 26 people who replied to this (23% thereof) indicated their support.  

Similarly,  with  regard  to  the  requirement  to  award  a  minimum  of  30%  of  sub-contracts  to 
third  parties  or  to  request  the  concession  holder  to  specify  the  percentage  of  services  to  be 
sub-contracted, 6 out of the 31 respondents who answered this (20% thereof) indicated their 
support.  

Concerning  the  application  of  the  Remedies  Directive  2007/66/EC,  11  out  of  the  28 
respondents  who  answered  this  (40%  thereof)  indicated  their  support.  Similarly,  concerning 
the possibility to participate in a tendering procedure, in particular by relying on the standing 
of  other  entities,  11  out  of  the  26  people  who  replied  to  this  (42%  thereof)  indicated  their 
support.  In  relation  to  the  possibility  to  restrict  the  award  criteria  to  price  and  the 
economically  most  advantageous  tender,  7  out  of  the  37  people  who  replied  to  this  (19% 
thereof) indicated their support.  

With regard to the provision on the non-discriminatory use of technical specifications, 12 out 
of  the  25  respondents  who  answered  to  this  (48%  thereof)  indicated  their  support.  Finally, 
with regard to a provision limiting the choice of procedures to the ones currently available for 

70

 
 
 
 
 
 
 
 
 
 
public  contracts,  13  out  of  the  31  people  who  replied  to  this  (42%)  also  indicated  their 
support.  

B) The consultation of the contracting authorities 

It is noted that 49 stakeholders from 14 different Member States provided their input to this 
consultation.  The  highest  number  of  respondents  originated  from  BG  and  DE  (8  each) 
followed closely by the UK (7) and ES (6). 10 replies came from a state authority, 5 from a 
regional authority, 20 from a local authority, 4 provided their reply on behalf of an association 
of  regional  or  local  authorities,  1  came  from  a  body  governed  by  public  law,  4  came  from 
associations  of  bodies  governed  by  public  law  and  1  from  another  contracting  entity  within 
the meaning of Directive 2004/17/EC. They were responsible in particular for transport (11), 
sports  and  leisure  facilities  (11),  health  services  (10)  waste  treatment  (9)  energy  or  heating 
services(9) and road and motorway operation (9). 

Out of the 49 respondents who make up this stakeholders group, 42 replied to the question on 
whether  they  have  awarded  a  concession  within  the  last  10  years,  with  32  (76%)  of  them 
indicating  that  they  actually  have,  while  the  other  10  (24%)  indicating  the  contrary.  In 
addition,  43  respondents  who  replied  to  the  question  on  whether  they  consider  awarding  a 
concession in the future. Out of those, 32 (74%) answered positively and 11 negatively (26%). 
These  figures  show  that  a  substantial  part  of  the  respondents  have  first  hand  knowledge  of 
concessions and of tendering procedures and that they intend to use them in the future. The 
highest number of concessions awarded by this group of stakeholders referred to transport (8) 
road and motorway operation (7), port services (6), health services (6) and energy and heating 
services  (6).  It  interesting  to  note  that  concessions  were  used  for  the  construction  of  an 
artificial lake, the operation of an Official Journal, the operation of information systems and a 
visa information service.   

With  reference  to  the  economic  importance  of  concessions  these  were  considered  to  be 
unimportant in Bulgaria and somewhat important in the Czech Republic (12 contracts related 
to small-scale regional projects on the supply of heat and water management). By contrast, in 
Portugal, concessions are omnipresent in all sectors the most important being the motorway 
sector  (investment  realized  of  €  13288  million).  In  most  of  the  States  of  the  respondents, 
including Bulgaria, concessions were considered to have an increase potential. 

The consultation further revealed that 12 out of the 30 respondents (40%) who replied to the 
question  consider  that  they  find  it  actually  difficult  to  distinguish  between  public  contracts 
and concessions. The main  reason  for  this lies on lack  of  clarity on the  types  of  risks  to  be 
taken  into  account  on  the  definition  of  operating  risk  (10  replies)  and  on  the  amount  of 
consideration to be paid by the contracting authority (7 replies). 

 In addition, 4 people in the group (8%) are completely satisfied with the definition, 13 out of 
the  49  people  (26,5%)  indicated  that  they  are  fine  with  the  definition  but  want  it  to  be 
improved while 2   in this stakeholders group indicated that there are shortcomings with the 
current definition of concessions provided in EU law.  

With regard to the procedure which is usually followed for the award of service concessions 
and in particular with reference to the level at which publication takes place, it appears that 
many publications take place only at national level, while a substantial number of those does 
not appear to take place at the international level at all.  

71

 
 
 
 
 
 
 
 
 
In relation to the question of whether in the procedures launched for the award of concessions 
there  were  any  tenderers  coming  from  other  Member  States,  answers  were  provided  with 
regard to 4 Member States. Negative answers were given for tendering procedures carried out 
in BG and IE, while positive for those carried out in PT and the UK. Hence for half of the 
Member States where input was provided, the replies confirmed the existence of cross-border 
tendering.  In  addition,  concerning  the  question  of  whether  the  respondents  have  awarded  a 
concession  to  a  tenderer  from  another  Member  State,  a  negative  answer  was  received  for  3 
Member States (BG, IE, UK) while there was one positive answer (PT).  

Concerning  the  question  of  which  are  the  most  important  reasons  favouring  the  direct 
provision  of  a  service,  the  most  frequent  reason  provided  (8  replies)  related  to  the  direct 
control of the service provision. Other grounds included, the time and effort required for local 
and  regional  authorities  to  familiarise  themselves  with  the  complex  procurement  rules  (2 
replies)  and  the  lower  costs  usually  involved  (2  replies).  Conversely,  with  regard  to  the 
question of which are the most important reasons favouring the use of concessions, the most 
frequent reason provided (7 replies) related to the transfer of the risk to the concession holder. 
Other grounds included the private funding involved (4 replies), the know-how of the private 
sector  (4  replies)  and  the  need  to  provide  the  service  in  a  cost-effective  manner  (5  replies). 
Concerning the follow-up question of how in the present circumstances the above reasons will 
play into the future decision of the stakeholders on whether to opt for the direct provision of a 
service  or  for  the  award  of  a  service  concession  contract,  out  of  the  8  replies  received,  3  
indicated that they will opt for concessions while the remaining 5  indicated that they will opt 
for  direct  provision.  This  suggests  that  a  substantial  proportion  of  contracting  authorities 
would in the present circumstances probably opt for the former.  

In addition, with regard to the operation of the current rules on works concessions, as in the 
case  of  the  business  community  consultation,  this  stakeholders'  consultation  also  revealed 
very positive results. In particular, with regard to the provision on publication, 19 respondents 
indicated that this provides a sufficient degree of transparency and equal treatment with none 
considering  otherwise,  while  17  out  of  18  (94%)  consider  that  it  provides  legal  clarity. 
Concerning  the  provisions  on  time  limits,  additional  works  and  subcontracting,  17  people 
consider that these provide a sufficient degree of transparency and equal treatment with none 
considering  otherwise,  while  15  people  out  of  16  (94%)  consider  that  these  provide  legal 
clarity. This confirms the positive assessment which has been made by this group as well, of 
the present rules on works concessions.  

With  regard  to  the  question  on  the  expected  impact  of  new  legislation  providing  for 
compulsory advertisement of service concessions at the European level, it should be pointed 
out that as in the case of the business community consultation, an overall negative impact is 
expected in only 1 Member State (DE). By contrast, it is noted that with regard to another 6 
Member States (BG, ES, IE, PT, SK, UK) a positive overall impact is expected.  

Concerning the question on whether the respondents expect that such a legislative provision 
would result in new entrants into the market, 69% of those who replied to this question (18 
out  of  26)  have  answered  positively.  This  suggests  that  as  in  the  case  of  the  business 
community,  the  contracting  authorities  group  is  also  quite  optimistic  that  such  a  legislative 
provision will result in the opening of the concessions market to competition.  

72

 
 
 
 
 
 
 
 
In  particular,  the  majority  of  those  who  replied  to  the  questions  on  the  possible  legislative 
content indicated that they are clearly in favour of the following: the compulsory publication 
of contract notices in the Official Journal of the EU (18 out of 32, that is 56% thereof), the 
obligation to respect minimal deadlines (18 out of 30, that is 60% thereof), the obligation for a 
concession  holder  to  respect  the  principle  of  non-discrimination  while  selecting  holders  of 
subcontracts  17  out  of  31,  that  is  55%  thereof),  the  possibility  to  directly  award  additional 
services  to  the  original  concession  holder  (17  out  of  27,  that  is  63%),  the  obligation  to 
announce qualification criteria (19 out of 33, that is 58% thereof), the possibility to participate 
in a tendering procedure in particular by relying on the standing of other entities (15 out of 29, 
that is 52% thereof), the possibility to restrict the award criteria to price and the economically 
most advantageous tender (15 out of 27 people, that is 56% thereof), and the provisions on the 
non- discriminatory use of technical specifications (14 out of 25, that is 56% thereof).  

In relation to the other possible provisions mentioned in the consultation, there appears to be 
no overall support in this group.  

In particular, with regard to the requirement to award a minimum of 30% of sub-contracts to 
third  parties  or  to  request  the  concession  holder  to  specify  the  percentage  of  services  to  be 
sub-contracted,  9  out  of  the  36  people  who  replied  to  this  (35%  thereof)  indicated  their 
support. Similarly, concerning the application of the Remedies Directive 2007/66/EC, 14 out 
of the 29 people who replied to this (48% thereof) also indicated their support. Finally, with 
regard  to  a  provision  limiting  the  choice  of  procedures  to  the  ones  currently  available  for 
public  contracts,  11  out  of  the  27  people  who  replied  to  this  (41%)  also  provided  their 
support. 

With  regard  to  the  obligation  of  the  concession  holder  to  respect  the  principle  of  non-
discrimination  while  selecting  sub-contractors  ,  17  out  of  31  people  in  the  contracting 
authorities' consultation provided their support.With regard to the obligation of the concession 
holder to respect the principle of non-discrimination while selecting sub-contractors , 9 out of 
26  people  in  the  contracting  authorities'  consultation  provided  their  support.  Finally,  with 
regard to the requirement to award a minimum of 30% of sub-contracts to third parties or to 
request the concession holder to specify the percentage of services to be sub-contracted 15 out 
of 27 people in the contracting authorities' consultation provided their support.  

C) The consultation of social partners, civil society and stakeholders 

There was a very small number of replies received, and even amongst those there was very 
limited  information  provided.  Only  12  social  partners  participated  in  the  consultation  by 
sending  their  contributions.  In  particular,  4  replies  came  from  associations  of  employers,  3 
from trade unions or associations of trade unions, 2 from NGOs and one from a committee of 
employees (in an undertaking). In one reply the type of organisation was not specified. 

Out of those 12 respondents, 5 (42 %) replied to the question on whether they were aware of 
service concessions awarded to foreign companies and they all indicated that they were aware 
of such awards, in their respective sectors. 

Two  respondents  (17  %)  reported  that,  in  the  sectors  they  were  familiar  with,  companies 
could  easily  secure  the  renewal  of  concession  contracts.  In  addition,  with  regard  to  the 
consequences  of  non  renewal  or  failure  to  secure  a  new  concession  contract,  3  respondents 

73

 
 
 
 
 
 
 
 
 
 
answered the question, and amongst those 1 indicated that the non-renewal caused job losses, 
whereas 2 replied that there were no job losses related to non-renewal, because contracts have 
"social  clauses"  obliging  the  new  concessionaire  to  take  on  the  employees  of  the  former 
concessionaire. 

Concerning the question on the type of labour contracts most prevalent in concession holding 
companies, 4 (33%) respondents replied, all of them indicating that both in services provided 
on the basis of concessions as well as in services directly provided by public authorities there 
is a predominance of permanent jobs or fixed-term contracts. Two respondents added that in 
the case of services provided on the basis of concessions there are also temporary agents and 
part  time  contracts.  In  relation  to  the  question  concerning  the  types  of  professional 
qualifications  in  companies  holding  concessions  and  in  services  directly  provided  by  the 
public  authority,  5  (42%)  respondents  replied;  4  of  them  indicating  that  in  both  cases  there 
was a predominance of specialized employees, while 1 respondent pointed out that in the case 
of companies holding concessions there was a prevalence of highly specialised workers. 

Concerning the operation of the current rules on works concessions, the consultation revealed 
that 3 out of 4 respondents who replied to the relevant question (75%) considered that these 
rules had a positive impact on the degree of transparency, equal treatment and legal clarity, as 
well  as  on  quality  and  price.  Only  1  respondent  indicated  that  these  rules  had  a  negative 
impact,  while  2  respondents  indicated  that  there  had  been  compliance  costs.  In  addition,  2 
respondents  considered  that  these  rules  had  a  negative  impact  on  the  number  of  jobs,  wage 
levels and type of contracts. 

Concerning  the  question  on  the  possible  impact  of  budget  cuts  on  companies  holding 
concessions  and  on public  administrations, 3 (25%) respondents  replied.  Two indicated that 
the cuts would result in a decrease in the number of jobs and in worse working conditions for 
both  companies  and  public  administrations,  while  one  respondent  considered  that  the  cuts 
would have no impact. 

In  relation  to  the  expected  impact  of  new  legislation  on  the  choice  of  public  authorities  on 
whether  to  externalise  the  provision  of  services  to  third  parties  or  not,  2  (17%)  respondents 
answered.  One  considered  that  the  legislation  might  favour  the  use  of  concessions,  whereas 
the other respondent indicated there would be no impact on the services directly provided by 
public authorities. 

With reference to the question on the possible impact of compulsory advertisement in relation 
to the renewal of concessions on incumbent operator, 4 (33%) respondents answered; out of 
those, 1 considered that there would be a positive impact on competition and prices, while the 
other  3  indicated  that  there  would  be  a  negative  impact  on  the  number  of  jobs  and  on  job 
conditions. 

Concerning  the  possible  impact  of  compulsory  advertisement  of  concessions  on  service  of 
general  economic  interest  (SGEI),  2  respondents  answered.  One  respondent  indicated  that 
there would be a positive impact on availability, quality and costs, while the other respondent 
considered that there would be a negative impact on quality. 

In  relation  to  the  possible  legislative  content,  the  great  majority  of  the  respondents  (9 
respondents that is 75% thereof) did not reply to the questions. Those very few who replied (3 
respondents, that is 25% thereof) are in favour of the possibility to award directly additional 

74

 
 
 
 
 
 
 
 
 
services  to  the  original  concession  holder  (2  out  of  3)  as  well  as  of  the  obligation,  for  the 
concession  holder,  to  respect  the  principle  of  non-discrimination  while  selecting  sub-
contractors  (2  out  of  3).  In  relation  to  the  other  possible  provisions  mentioned  in  the 
consultation, there appears to be no overall support. 

In  particular,  with  regard  to  the  compulsory  publication  of  a  contract  notice  in  the  Official 
Journal  of  the  EU,  the  obligation  to  respect  minimal  deadlines  and  the  application  of  the 
Remedies Directive, 1 respondent was in favour and 2 were against these provisions.  

In  addition,  the  very  few  who  replied  are  in  favour  of  the  possibility  for  an  EU  operator  to 
prove  it  meets  qualification  criteria  for  participation  in  a  tendering  procedure  by  relying  on 
the standing of other entities (2 replies in favour out of 3 total replies to the question) and of 
the  provision  of  non  discriminatory  use  of  technical  specifications  (one  single  reply  to  the 
question). 

As it is clear from the number of replies to the questions, the data collected cannot constitute a 
solid basis for drawing conclusions on the position of social partners.  

75

 
 
 
 
 
Annex II — Overview of the MS legislation 

76

 
 
 
 
 
Definition of service concessions 

Level of publication 

Thresholds and method of 
calculating the value of the 
contract 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Austria 

Belgium 

Bulgaria 

Same definition as the EU Directives 
(see §8 of BVergG 2006 of the 
Austrian law on public procurement). 

For works concession Article 3 (12) of 
he Act of 15-06-2006: concession de 
travaux publics : le contrat présentant 
les mêmes caractéristiques qu'un 
marché public de travaux, à 
l'exception du fait que la contrepartie 
des travaux consiste soit uniquement 
dans le droit d'exploiter l'ouvrage, soit 
dans ce droit assorti d'un prix 
(ATTENTION: NO BELGIAN RULES 
FOR SERVICE CONCESSIONS and 
NO RULES FOR WORKS 
CONCESSSIONS IN UTILITIES 
SECTOR!) 

La Loi bulgare sur les concessions est 
entrée en vigueur le 01.07.2006. 

L'article 2 de la LC définit la 
concession comme le droit d'exploiter 
un ouvrage  et/ou de fournir un 
service. Ce droit est attribué par le 
pouvoir adjudicateur au 
concessionnaire. La contrepartie de ce 
droit est l'obligation pour le 
concessionnaire de bâtir, gérer et 
entretenir en bon état l'ouvrage 
concédé ou de gérer le service à son 
propre risque.  
Trois types de concessions existent en 
Bulgarie: travaux, services et 
extraction. 

According to §11 of BVergG 
2006 a reasonable degree of 
publicity has to be safeguarded 
(insofar as it appears necessary 
with regard to value and subject 
matter of the contract and 
taking into account that in 
principle several undertakings 
should participate in award 
proceedings). 

Austrian public authorities may 
voluntary notify to the 
Commission announcements 
relating to award of service 
concessions (§11 in conjunction 
with §49 of BVergG 2006). 
Only obligation for works 
concessions: above threshold 
Directive: in EU OJ and national 
OJ. Below threshold: in national 
OJ  

Article 42 de la LC 
Publication des concessions de 
services et de travaux au JO 
national et inscription au 
Registre national des 
concessions. 
Concernant les avis des 
concessions de travaux, 
parallèlement à la publication 
au JO, les concessions de 
travaux au-dessus des seuils 
fixés par la Directive 
2004/18/CE européenne, sont 
aussi publiées au JOUE.  
Article 43 de la LC 
Après publication au JOUE, 
l'avis de concession est publié 
dans la presse et/ou sur 
internet.  

The direct award of a service 
concession to a specific 
contractor is allowed for contracts 
below a threshold of 100 000 
Euro (§11 of BVergG 2006) 

Provisions of BVergG 2006 
relating to service concession 
contracts do not differentiate 
between various kinds of 
services. 

See previous cell. No rules on 
calculation of value. 

Services are not covered (only 
works concessions) 

Pas de seuil prévu 
Pas de méthode de calcul 

Article 4 de la LC: Les services 
d'intérêt public qui peuvent 
inclure certains travaux. 

No specific provisions, only 
principles from §11 of 
BVergG 2006 (identical for 
utilities: §177 BVergG 
2006): A service 
concession has to be 
basically awarded in 
proceedings with several 
undertakings. The basic 
freedoms of the EU and 
prohibition of discrimination 
shall be respected as well 
as principles of free and 
fair competition).  

Normal rules on technical 
specifications and 
selection criteria are not 
applicable, (except one 
general article on selection 
criteria (see Article 150 
that refers to Article 58 of 
the Royal Decree of 15 
July 2011). 

Article 25 et 26 de la LC 
concernent la situation 
personnelle du candidat, 
habilitation à exercer 
l'activité professionnelle, 
capacité économique et 
financière, capacités 
techniques et/ou 
professionnelles 
comparables à celles de la 
Directive 2004/18/CE.  

See previous cell 

See previous cell 

Not specifically provided (can be 
negotiated procedure article 154 
Royal Decree 15-7-2011), but 
some deadlines are provided, also 
for below threshold concessions). 

Not specified in detail what 
these could be, but they 
should be stipulated in the 
contractual documents (Art. 
147 and 154 Royal Decree 
15-11-2011). 

Remedies 
Directive 

Not applicable 
to service 
concessions. 
Remedies 
against 
administrative 
decisions are 
available as far 
as / under the 
conditions 
forseen by 
normal 
administrative 
law. 

Not applicable 
to service 
concessions 
but general 
system of 
remedies 
applies 

Article 24 de la LC: procédure 
ouverte uniquement 

Article 27 de la LC : "…le 
critère d'évaluation des offres 
est l'offre économiquement la 
plus avantageuse." 

Applicable to 
service 
concessions. 

77 

 
 
  
 
 
Cyprus 

Czech 
Republic 

Denmark 

Estonia 

Finland 

Definition of service concessions 

Level of publication 

Law 12(1)/2006 (classical sector) 
defines a works/services concession, 
as a contract of the same type as a 
public works/services contract except 
for the fact that the consideration for 
the works/services to be carried 
out/provided consists either solely in 
the right to exploit the work or in this 
right together with payment 
(art.2).Service concessions are 
excluded from this Law (art.16)- Law 
11(1)/2006 (utilities) provides for the 
same definition (art.2)Both types of 
concessions are expressly excluded 
from this Law (art.17) 

Law 12(1)/2006 (classical 
sector), provides for publication 
in the OJEU, for works 
concessions falling within the 
scope of Dir.2004/18 (art.64). 
On service concessions, N/A, 
as these are excluded from this 
Law (art.16)- With regard to 
Law 11(1)/2006 (utilities) –N/A, 
as both types of concessions 
are expressly excluded from 
this Law (art.17).  

Works concessions above EU 
thresholds: publication in the 
OJEU + National Information 
System of Public Contracts 
(single point of access). All 
other (works+service) 
concessions: publication in the 
National Information System of 
Public Contracts. 

There is no definition of the 
concession. The Concessions Act n. 
139/2006 defines the Concession 
Contract in Article 16 as a contract 
whereby the concessionaire 
undertakes to provide service or 
perform works and the contracting 
authority undertakes to enable the 
concessionnaire to receive benefits 
resulting from the provision of the 
service or usage of the works, 
eventually combined with a monetary 
paiement. A substantial part of the risk 
relating to the reception of benefits 
should be borne by the 
concessionnaire.  

Definition of service concession is 
identical to the definition in Directives 
2004/17 and 2004/18. 

National 

Same as the EU Directives (see Art. 6 
(2) of the public procurement act). 

National  

Thresholds and method of 
calculating the value of the 
contract 

Law 12(1)/2006 (classical sector) 
applies only for works 
concessions with an estimated 
value above the threshold set in 
2004/18. (art.64). The method for 
calculating the value of the works 
concession, is the same as the 
one with regard to a public works 
contract, namely, the total amount 
to be paid, as estimated in 
advance by the contracting 
authority (articles 21 and 64).On 
service concessions, N/A, as 
these are excluded from this Law 
(art.16)- With regard to Law 
11(1)/2006 (utilities) –N/A, as both 
types of concessions are 
expressly excluded from this Law 
(art.17) 

1. Minimum threshold is CZK 20 
mil (€ 800 000) value is estimated 
income of the concessionaire. 
2. EU threshold for works 
concession is used for publication 
purposes (see cell C7). Another 
distinction is made at national 
level for major concessions 
(variable threshold according to 
the contracting authority) for 
financial approval of the 
concession project and final 
contract. 
3. Value of concession: Estimated 
income of the concessionaire 
during the expected term of 
contract. Estimated value of cost 
is not relevant for threshold.  
Not defined 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Law 12(1)/2006 (classical 
sector) does not make any 
provision on the technical 
specifications/selection 
criteria to be applied for 
awarding a works 
concession – N/A. On 
service concessions, N/A 
either as these are 
excluded from this Law 
(art.16).- With regard to 
Law 11(1)/2006 (utilities) –
N/A, as both types of 
concessions are expressly 
excluded from this Law 
(art.17) 

Provisions of Public 
Contracts Act apply. 

Law 12(1)/2006 (classical 
sector)  provides with regard to 
works concessions, that the 
same types of contracts are 
covered, as in the case of 
public works contracts (art.2). 
On service concessions, N/A, 
as these are excluded from this 
Law (art.16)- With regard to 
Law 11(1)/2006 (utilities) –N/A, 
as both types of concessions 
are expressly excluded from 
this Law (art.17) 

The Concessions Act apply to 
all works and service 
concessions awarded by 
contracting authorities, 
including in sector activities 
covered by Dir 2004/17/EC 
(only if awarded by contracting 
authorities, not if awarded by 
entities).  

Law 12(1)/2006 (classical sector) 
does not make any provision on 
the award procedures to be 
followed for awarding works 
concessions – N/A.On service 
concessions, N/A, as these are 
excluded from this Law (art.16)- 
With regard to Law 11(1)/2006 
(utilities) – N/A, as both types of 
concessions are expressly 
excluded from this Law (art.17) 

Law 12(1)/2006 (classical 
sector) does not make any 
provision on the award 
criteria for awarding works 
concessions – N/A.On 
service concessions, N/A, as 
these are excluded from this 
Law (art.16)- With regard to 
Law 11(1)/2006 (utilities) –
N/A, as both types of 
concessions are expressly 
excluded from this Law 
(art.17) 

1. Restricted procedure not 
aplicable 
2. Negotiated procedure following 
a selection stage 
3. Concession Dialogue - 
equivalent to Competitive 
Dialogue  

Provisions of Public 
Contracts Act apply 
accordingly, but only 
economically most 
advantageous tender can be 
used in award criteria.  

No limitations 

Not defined 

Not defined 

Not defined 

Remedies 
Directive 

Not applicable: 
Law 104(1) 
which 
implemets the 
Directive into 
national  law 
does not cover 
service 
concessions. 
Only general 
remedies 
provided by 
Cypriot 
administrative 
law are 
applicable. 

Applicable to 
service 
concessions 

Not applicable 
to service 
concessions 

Not defined.  

No limitations. 

Not defined.  

Not defined.  

Not defined.  

Not applicable. 

National. 

Not defined. 

No limitations. 

Not defined. 

Not defined. 

Not defined. 

Service concession defined in § 5(6) 
of the public procurement act and in § 
4(6) of the utilities procurement act: "a 
contract, similar to a service contract 
excecpt that the consideration consists 
either on the right to exploit the service 
or the right together with a payment" 

Applicable to 
service 
concessions, 
except for the 
provisions on 
the mandatory 
standstill 
period. 

78 

 
 
  
Remedies 
Directive 

Applicable to 
service 
concessions. 

Definition of service concessions 

Level of publication 

Thresholds and method of 
calculating the value of the 
contract 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

du 

risque 

transfert 

le  critère 

Selon l'article 38 (1er tiret) de la loi n° 
93-122  du  29  janvier  (loi  Sapin)  une 
délégation  de  service  public  (c.à.d., 
une  concession)  est  "un  contrat  par 
lequel  une  personne  morale  de  droit 
public  confie  la  gestion  d'un  service 
public  dont  elle  a  la  responsabilité  à 
un délégataire public ou privé, dont la 
rémunération  est  substantiellement 
liée  aux  résultats  de  l'exploitation  du 
service.  Le  délégataire  peut  être 
chargé de construire des ouvrages ou 
d'acquérir  des  biens  nécessaires  au 
service." 
La jurisprudence nationale a établi que 
le 
à 
l'exploitant/délégataire/concessionnair
fondamental  pour 
e  est 
d'une 
déterminer 
DSP/concession 
(décision 
Département de la Vendée du Conseil 
d'Etat 
2)  Les  concessions  de  travaux  sont 
définies  comme  étant  "des  contrats 
administratifs  dont  l'objet  est  de  faire 
réaliser  tous  travaux  de  bâtiment  ou 
de  génie  civil  par  un  concessionnaire 
la  rémunération  consiste  soit 
dont 
dans  le  droit  d'exploiter  l'ouvrage,  soit 
dans ce droit assorti d'un prix." (article 
1er  de  l'ordonnance  n°  2009-864  du 
15  juillet  2009),  Bien  que  la  question 
ne soit pas totalement claire, il semble 
que  si  un  contrat  est  qualifié  de 
seule 
concession 
l'ordonnance  n°  2009-864  s'applique 
(et non la loi Sapin). 

l'existence 

novembre 

travaux, 

du 

de 

7 

2008),    

France 

que 

sont 

dans 

dispose 

loi  du  29 

L'article 38, 2ème tiret, de la loi 
Sapin 
"Les 
délégations  de  service  public 
des personnes morales de droit 
public 
soumises  par 
l'autorité  délégante  à  une 
procédure 
publicité 
de 
permettant  la  présentation  de 
plusieurs  offres  concurrentes, 
dans  des  conditions  prévues 
par  un  décret  en  Conseil 
d'Etat."  Le  décret  n°  93-471  du 
24  mars  1993  établit  que 
la 
"l'autorité  responsable  de 
personne  publique  délégante 
doit  satisfaire  à  l'exigence  de 
publicité prévue à l'article 38 de 
la 
janvier  1993 
susvisée par une insertion dans 
une  publication  habilitée  à 
recevoir  des  annonces  légales 
et 
publication 
une 
spécialisée  correspondant  au 
secteur économique concerné". 
La  jurisprudence  nationale  a 
établi  qu'à  ces  obligations 
des 
peuvent 
publicité 
obligations 
supplémentaires  pour  atteindre 
un  degré  de  publicité  adéquate 
selon 
la 
concession/DSP  et  tel  qu'exigé 
jurisprudence 
par 
communautaire 
"Telaustria", 
Une  publication  d'  "ampleur 
européenne"  peut  ainsi  être 
requise,  En  revanche,  il  n'y  a 
aucune  obligation  de  principe 
de  publication  au  JOUE.      2) 
Pour 
de 
travaux    d'une  valeur  inférieure 
à  ce  montant 
le  pouvoir 
adjudicateur  "choisit  librement 
les  modalités  de  publicité 
adaptées  (,,,)    en  fonction  des 
caractéristiques  du  contrat  et 
notamment  de  son  montant  et 
de  la  nature  des  travaux  en 
cause."  (articles  12  et  27  du 
décret n° 2010-406). 

s'ajouter 
de 

concessions 

nature 

les 

de 

la 

la 

qui 

restriction, 
son 
sur 

La  loi  Sapin  couvre  tous  les 
secteurs,  en  principe  sans 
Des 
aucune 
questions 
champ 
d'application  se  sont  posées, 
d'une  part,  quant  aux  activités 
visées  par 
la  définition  de 
"service  public"    (par  exemple, 
la  réalisation  de  logements  en 
dehors  de  tout  but  social  ne 
serait  pas  un  "service  public") 
et,  d'autre  part,  quant  aux 
exceptions 
écartent 
l'application  de  la  loi  dans  les 
cas de droits exclusifs et de "in-
house"  (qui  a  écarté  pendant 
longtemps  l'application  de  la  loi 
Sapin 
concessions 
aéroportuaires),    
2)  La  réglementation  sur  les 
travaux 
concessions 
(ordonnance  n°  2009-864  et 
décret 
ne 
s'applique pas aux concessions 
de 
la 
directive 2004/17/CE (articles 4, 
7ème  point  et  11,  7ème  point, 
de l'ordonnance n° 2009-864 et 
article 4, 8ème point, du décret 
n° 2010-406).  

relevant  de 

2010-406) 

travaux 

aux 

de 

n° 

toutes 

lorsque 

principe, 

En 
les 
concessions/DSP  sont  soumises 
à  la  loi Sapin  (c.à.d., qu'il  n'y  pas 
de  seuil  de  minimis),  Toutefois, 
les  concessions/DSP  dont 
"le 
montant  des  sommes  dues  au 
délégataire pour toute la durée de 
la  convention  n'excède  pas  106 
000  euros"  ou 
"la 
convention couvre une durée non 
supérieure à trois ans et porte sur 
un  montant  n'excédant  pas  68 
000  euros  par  an"  peuvent  être 
passées  selon  une  procédure 
allégée  (article  41,  sous  c)  de  la 
loi  Sapin),  Cette  procédure 
allégée 
toutefois 
maintient 
l'obligation  de  publicité  préalable 
ainsi que l'obligation de respecter 
l'article  40  de  la  loi  Sapin  sur  la 
la  prolongation  des 
durée  et 
concessions/DSP,  Il n'y  a  aucune 
règle sur le calcul de la valeur du 
contrat. 
2)  Un  seul  seuil  de  4,845,000 
euros  (articles  10,  19  et  27  du 
décret  n°  2010-406),  Concernant 
le calcul de la valeur du contrat le 
décret  n°  2010-406  (articles  10, 
19  et  27)  dispose  que:  "Pour  la 
détermination 
montant 
mentionné  au 
I,  est  pris  en 
compte  l'ensemble  des  produits 
prévisibles  de  l'exécution  de  la 
cas 
concession, 
échéant la valeur des installations 
et 
le  pouvoir 
adjudicateur se propose de mettre 
à 
du 
la 
concessionnaire. 
Le  pouvoir  adjudicateur  ne  peut 
se  soustraire  à  l'application  des 
règles  de  publicité  et  de  mise  en 
concurrence  en  scindant  ses 
achats  ou  en  utilisant  des 
modalités  de  calcul  de  la  valeur 
estimée  des  contrats  autres  que 
l'alinéa  qui 
celles  prévues  à 
précède. 
l'opération 
Lorsque 
envisagée  peut  être  réalisée  par 
lots  séparés,  est  prise  en  compte 
la  valeur  globale  estimée  de  la 
totalité de ces lots." 

fournitures  que 

disposition 

incluant 

du 

le 

La loi Sapin ne dit rien sur les 
critères d'attribution, choix 
justifié sur le caractère 
"intuitu personae" de 
l'attribution de la 
concession/DSP, Il était ainsi 
entendu que le délégant 
n'était pas obligé d'indiquer 
les critères d'attribution qu'il 
comptait appliquer pour 
attribuer la concession/DSP, 
Toutefois, les derniers 
développements de la 
jurisprudence nationale 
indiquent un changement de 
cap, Ainsi le Conseil d'Etat a 
estimé (décision Musée de 
Versailles du 23  décembre 
2009) que, les DSP étant 
soumises aux principes 
généraux de la commande 
publique, "la personne 
publique doit apporter aux 
candidats à l’attribution d’une 
délégation de service public, 
avant le dépôt de leurs offres, 
une information sur les 
critères de sélection des 
offres" même si "elle n’est 
pas tenue d’informer les 
candidats des modalités de 
mise en œuvre de ces 
critères". 
2) La réglementation sur les 
concessions de travaux ne 
prévoit aucune disposition 
sur les critères d'attribution, 
Les principes généraux sont 
toutefois d'application 
(articles 5 et 11 de 
l'ordonnance n° 2009-864, 
article 5 du décret n° 2010-
406), et l'annexe VII B de la 
directive 2004/18/CE impose 
l'indication de ces critères 
dans l'avis de la concession. 

La loi Sapin ne prévoit 
aucune disposition sur les 
spécifications techniques, 
Ces spécifications sont 
toutefois contrôlées par le 
juge national qui a estimé 
(décision Corsica Ferries - 
Conseil d'Etat du 15 
décembre 2006) que "des 
spécifications techniques 
supérieures à celles 
exigées par la 
réglementation applicable 
au secteur d’activité 
peuvent être édictées par 
le règlement de la 
consultation ou le cahier 
des charges ; que, 
toutefois, si de telles 
spécifications ont pour 
effet de limiter la 
concurrence entre les 
candidats potentiels, elles 
doivent  être justifiées par 
les nécessités propres au 
service public faisant 
l’objet de la délégation",  
La sélection des 
candidatures est effectuée 
dans les conditions 
prévues à l'article 38, 
3ème alinéa qui dispose: 
"La collectivité publique 
dresse la liste des 
candidats admis à 
présenter une offre après 
examen de leurs garanties 
professionnelles et 
financières et de leur 
aptitude à assurer la 
continuité du service public 
et l'égalité des usagers 
devant le service public", 
La jurisprudence nationale 
a, à plusieurs reprises, 
précisé le premier de ces 
deux critères généraux. 
2) La réglementation sur 
les concessions de travaux 
ne prévoit aucune 
disposition sur les 
spécifications techniques 
et les critères de sélection, 
Les principes généraux 
sont toutefois d'application 
(articles 5 et 11 de 
l'ordonnance n° 2009-864, 
article 5 du décret n° 2010-
406). 

Le délai pour la présentation des 
candidatures est d'au moins un 
mois après la date de la dernière 
publication (article 1er, 2ème 
alinéa, du décret n° 93-471), Il n'y 
pas de délai pour la présentation 
des offres, Selon l'article 38, 
5ème alinéa, de la loi Sapin, les 
offres "sont librement négociées 
par l'autorité responsable de la 
personne publique délégante qui, 
au terme de ces négociations, 
choisit le délégataire.", Par 
ailleurs, l'article 43, 5ème alinéa, 
relatif aux concessions/DSP 
passées par les collectivités 
territoriales précise que "l'autorité 
habilitée à signer la convention 
engage librement toute discussion 
utile avec une ou des entreprises 
ayant présenté une offre." Enfin, 
l'article 45, relatif lui aussi aux 
collectivités territoriales, dispose 
que "le recours à une procédure 
de négociation directe avec une 
entreprise déterminée n'est 
possible que dans le cas où, 
après mise en concurrence, 
aucune offre n'a été proposée ou 
n'est acceptée par la collectivité 
publique." Le principe est donc la 
négociation totalement libre entre 
le concédant/délégant et un ou 
plusieurs soumissionnaires, Ce 
principe va jusqu'à permettre au 
délégant de décider de ne pas 
entamer la négociation avec 
certain ou certains 
soumissionnaires ayant pourtant 
été sélectionnés, Toutefois, la 
jurisprudence nationale veille au 
respect du principe d'égalité entre 
les candidats participant à la 
négociation et à ce que l'objet de 
la concession/DSP ne soit pas 
modifié pendant celle-ci. 
2) La réglementation sur les 
concessions de travaux ne prévoit 
aucune disposition sur les 
procédures de passation, La 
formulation de certaines 
dispositions indiquent que le 
législateur a envisagé que les 
concessions de travaux soient 
passées aussi bien par procédure 
négociée que par procédure 
ouverte ou restreinte, Les 
principes généraux sont toutefois 
d'application (articles 5 et 11 de 
l'ordonnance n° 2009-864, article 
5 du décret n° 2010-406). 

79 

 
 
  
Definition of service concessions 

Level of publication 

Thresholds and method of 
calculating the value of the 
contract 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

The German public procurement 
legislation does not contain any 
provisions relating to service 
concessions.  

NB: the notion of "Konzession" is used 
in Germany in a much larger way, 
often just referring to administrative 
authorisations 
("Gaststättenkonzession" - licence for 
running a restaurant, or the famous 
Taxikonzessionen) or the simple right 
to use a public good/ public grounds 
(e.g. "Wegenutzungskonzession" - 
usage of public area for Energy grids, 
cf. the German 
Energiewirtschaftsgesetz: 
http://www.gesetze-im-
internet.de/enwg_2005/index.html). 
However, the rules relating to these 
"Konzessionen" are not public 
procurement rules but other 
administrative law. 

La  loi  grecque  reprend  la  définition 
des  concessions  de  services 
telle 
qu'elle  apparaît  dans  le  texte  de  la 
Directive 2004/18 article 1. 

Germany 

Greece 

Not defined. 

Not defined. 

Not defined. 

Not defined. 

Not defined. 

Not defined. 

 Aucun seuil et aucune méthode 
prévus pour les concessions de 
services.Absence de 
réglementation. 

Sans objet (vu l'inexistence de 
réglementation). L'étude de 
Bruges a réperé des 
concessions de service 
concernant la liaison maritime 
avec des îles isolés. 
Néanmoins, il ne s'agit pas de 
concessions de services, vu 
que l'Etat accordedes 
subventions en enlevant ainsi le 
risque. 

Aucune réglementation. 
Pas d'information 
disponible sur la pratique 
suivie. 

Aucune réglementation. Pas 
d'information disponible sur la 
pratique suivie. 

Pas d''information disponible 
sur la pratique suivie. 

A  la  lumière  des  informations 
disponibles, 
il  y  a  pas  de 
législation  nationale  couvrant 
les  concessions  de  services. 
Par  conéquent,  dans  le  cas  de 
procédures  pour 
l'attribution 
des  marchés  des  concessions 
de  services,  il  y  aura  au  moins 
de 
la  publicité  au  niveau 
national.  Il  est  à  noter  que  les 
autorités  gracques  publient  des 
avis  de  marché  pour  des 
contrats 
importants 
dans  le  JOEU,  pour  avoir  une 
concurrence 
accrue, 
même  s'elles  n'y  sont  pas 
obligées.  

publics 

plus 

Remedies 
Directive 

Not applicable. 
Remedies 
against 
administrative 
decisions are 
available as far 
as / under the 
conditions 
forseen by 
general 
administrative 
law. 

Not applicable, 
but there are 
other existing 
remedies, i.e. 
request for 
suspension and 
request for 
annulment. 
Nevertheless, 
there is no 
possibility to 
request interim 
measures. 
Given the fact 
that the courts 
reject in most 
cases the 
requests for 
suspensions, 
only the request 
for annulment 
remains (but it 
is also very 
difficult to 
obtain and in 
any case 
decisions on 
this ground take 
a lot of time to 
be issued). 

80 

 
 
  
 
Definition of service concessions 

Level of publication 

For works concessions in the 
Public Sector, exceeding the 
EU threshold: publication in the 
OJEU (Art. 44 and 138 HPPA). 
For works concessions and 
service concessions in the 
Public Sector, above the 
national threshold: publication 
in the national Procurement 
Gazette (Art. 244 HPPA). For 
service concessions covered by 
Act No. 16 of 1991 on 
Concessions (CA): publication 
in 2 national newspapers (Art. 
8(1) CA). (The CA governs the 
award of concession contracts 
in a few specific sectors (e.g. 
public roads (not motorways), 
local and regional utilities). It's 
relation with the HPPA is as 
follows: for works concessions 
the HPPA prevails, for service 
concessions the CA has 
presedence.) 

See reply on award procedures 

Under Art. 242(4) of Act No. 129 of 
2003 on Public Procurement (HPPA), 
"Service concession involves 
contracting for services where the 
contracting authority transfers the right 
to exploit commercially the provision of 
the relevant services (the right of 
exploitation) for a specific period of 
time and the consideration is the right 
of exploitation or the transfer of this 
right together with a monetary 
consideration." 

Hungary 

The same as that contained in Articles 
3 and 17 of Directive 2004/18/EC (see 
Article 30.1 of the Italian Code for 
public contracts) 

Italy 

Thresholds and method of 
calculating the value of the 
contract 

Public Sector: EU threshold for 
works concessions: EUR 4.85M 
(Art. 31(2) HPPA), national 
threshold for works concessions: 
~EUR 380T, national threshold for 
service concessions: ~EUR 95T 
(Art. 244 HPPA). Under Art. 35(1) 
of the HPPA, "The value of a 
public procurement shall be the 
highest consideration requested 
or offered in general for its 
subject-matter at the time of the 
beginning of the contract award 
procedure, which is to be 
calculated net of VAT and taking 
account of the provisions of 
Articles 36 to 40 (hereinafter 
referred to as ‘estimated value’). 
The full consideration shall 
include the value of the transfer of 
the buy option." 

The threshold for services 
concessions is the same as that 
provided by Article 7 b of Directive 
2004/18/EC for services contracts 

Remedies 
Directive 

Applicable also 
to service 
concessions 
which are 
covered by the 
PP Act by 
reason of their 
value etc., with 
the exception of 
concessions in 
certain sectors 
(defined in the 
Concession 
Act, e.g. public 
roads - not 
motorways - 
local and 
regional 
utilities). 

Applicable to 
service 
concessions. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

All services in the Public Sector 
(Utilities not covered), with 
some specific rules for certain 
transport and health services 
(Art. 254 HPPA). 

The technical 
specifications and 
selection criteria used for 
the Public Sector in 
general. 

In general, the open, restricted 
and negotiated procedure with 
prior publication can be used. The 
use of the negotiated procedure 
without publication is subject to 
strict rules based on the Public 
Sector Directive. (Art. 144(6) and 
252 HPPA) 

For works concessions only 
the criterion 'the economically 
most advantageous offer' can 
be used, for service 
concessions either the lowest 
offer or the economically 
most advantageous offer. 
(Art. 141(a) and 250(3)(c) 
HPPA) 

Statistically, the main sectors 
covered by services 
concessions are  water 
management services and, on 
the other hand, bet and games-
related services; motorway 
management activities are 
normally concocted as a part of 
motorway concessions, which 
also involve a part of works 
contracts and works 
concessions 

Technical specifications 
are frequent; sometimes, 
they can be rather detailed, 
as it can occur in the field 
of bet and games-related 
services concessions, 
which often lay down very 
significant requirements of 
technical and financial 
capacity that have to be 
normally scrutinized as for 
their consistency with the 
principle of proportionality; 
this stems from the choice 
of Italy to create a market 
in such sector, in which the 
competition on it is far from 
being perfect, 

Award criteria are defined on 
the basis of the best 
income/conditions the 
concessionaire can assure to 
the benefit of the awarding 
authority (e,g, as for the 
award of bets and games-
related services 
concessions). 

The general procedure provided is 
generally the negotiated (Art. 30 
(3) of Italian Code of public 
contracts); however, the case-law 
of administrative courts makes it 
compulsory the recourse to open 
procedures on the basis of the 
principles of transparency and 
non discrimination; this entails the 
publication on the EUOJ of call for 
tenders related to services above 
the thresholds (those for services 
contracts; publication in the EUOJ 
basically almost all the time) and 
on the ITOJ for services below 
them; open procedures are more 
clearly provided as compulsory for 
the management of local services 
(article 50 of Decree Law 
112/2008), for which the recourse 
to the "in house providing" regime 
is made more restrictive (besides 
the two Teckal conditions the 
authority has also to show through 
a market survey that recourse to 
the free market is not 
economically efficient),  

81 

 
 
  
Definition of service concessions 

Level of publication 

Thresholds and method of 
calculating the value of the 
contract 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Not defined. 

Not defined. 

The 2006 Guidance from the 
central Goverment concerning 
PPPs establishes that: Under 
EU procurement law, the nature 
and level of communication 
permissible with bidders / 
potential bidders will be 
determined by the procurement 
procedure chosen.  In this 
respect please see box in this 
excel table relating to the 
choice of procedures. 

The 2006 Public Sector Procurement 
Regulations transpose literally 
Directives 2004/18/EC and 
2004/17/EC. The definition of service 
concession is therefore the one in 
those Directives.// The figure of 
service concession as such does not 
exist in IE. However the Irish concept 
of PPP in IE would seem to include 
EU service concession cases, notably 
in terms of the private operator 
bearing large part of the risk.// The 
State Authorities Act (public private 
partnershipe agreements) Act 2002  
governs some aspects of the setting 
up of PPPs by State Authorities. Also, 
the Irish Goverment issued guidelines 
in 2006 for the setting up of PPPs 
which may be used  by contracting 
authorities. http://www.ppp.gov.ie/   
According to those Guidelines:  PPP 
projects must be procured in line with 
all regulatory and EU procurement 
requirements in regard to tendering 
and bid evaluation. 

Ireland 

According to the 2006 
National Guidelines on 
PPPs: In any procurement 
competition, all of the 
tenders received are first 
examined to determine 
whether they are “suitable” 
bids.  The basis on which 
“suitability” will be 
determined should be clear 
and transparent and 
signalled in the tender 
documentation.   

According to the 2006 
National Guidelines on PPPs: 
If a tender meets the 
considerations for 
“suitability”, including any 
relevant budgetary 
considerations, it should then 
be considered “suitable in 
principle”.  Such a bid will 
then be evaluated, scored 
and ranked according to the 
published Evaluation Criteria.  
The Sponsoring Agency or 
the Centre of Expertise 
(according to where 
responsibility for the 
procurement of the project 
lies in a particular instance), 
will have identified the most 
appropriate evaluation criteria 
for the project and these will 
have been made available to 
interested parties in line with 
the requirements within the 
Directives.   

http://www.ppp.gov.ie/key-
documents/guidance/central-
guidance  The 2006 National 
Guidelines on PPPs establish that 
:Under EU procurement law, the 
nature and level of communication 
permissible with bidders / 
potential bidders will be 
determined by the procurement 
procedure chosen.  The choice of 
procedure should be made on 
advice from the Sponsoring 
Agency’s / Centre of Expertise’s 
legal advisors, as appropriate.  

The Public Sector Benchmark 
should be finalised before any 
tender-related communications 
with the private sector are 
commenced.  Earlier 
communication with the market to 
determine their interest in 
delivering a project may only 
occur in circumstances as 
outlined in section 3.3 below – 
dealing with optional market 
consultation.  Where the use of a 
negotiated procedure  is 
permitted, the client should use 
the tender liaison meetings as a 
forum to discuss the tenderers’ 
interpretation of the output 
specifications.  As indicated 
previously, current policy is that 
the final PSB, or any elements 
thereof, should not be made 
public in any communication with 
the market.  

Remedies 
Directive 

Not applicable. 
It is difficult to 
be sure, since 
the concept of 
concession 
does not really 
exist, but it 
appears that 
the Remedies 
Directive is not 
applicable since 
the national 
Statute 
transposing it 
provides that 
the remedies 
therein apply to 
contracts 
covered by the 
national 
Statutes 
transposing 
Directives 
2004/18 and 
2004/17. 

82 

 
 
  
 
Thresholds and method of 
calculating the value of the 
contract 

Not defined 

Definition of service concessions 

Level of publication 

Article 38 and article 57 of the 
PP Law -website of the Public 
Monitoring Bureau and the 
Official Journal of the European 
Union 

The Public-Private Partnership Law 
from 2009 defines the service 
concession contract in Article 1 § 7 as 
"a contract in accordance with which 
byan order of a public partner the 
private partner renders the services 
set forth inAnnex 2 to the Public 
Procurement Law and as 
remuneration or a significantpart 
thereof for the rendering of such 
services is granted the right to exploit 
theseservices (Clause 8) of this 
Article) and simultaneously such 
service exploitationrisks (Clause 9) of 
this Article) or a significant share 
thereof is transferredthereto; Should a 
service concession contract also 
include the performance ofthe 
construction works set forth in Annex 1 
to the Public Procurement Law,which 
is an insignificant part of the subject of 
this contract, such contract shallbe 
considered a public service contract;" 

Latvia 

Remedies 
Directive 

Applicable to 
service 
concessions. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Not defined 

The  Public-Private Partnership 
Law applies to all works and 
service concessions awarded 
by contracting authorities, 
including in sector activities 
covered by Dir 2004/17/EC. 

Article 17 Types of Concession 
Procedures 1) a competition 
without selection of candidates;2) 
a competition with selection of 
candidates;3) competitive 
dialogue. 

According to the 2006 
National Guidelines on PPPs: 
If a tender meets the 
considerations for 
“suitability”, including any 
relevant budgetary 
considerations, it should then 
be considered “suitable in 
principle”.  Such a bid will 
then be evaluated, scored 
and ranked according to the 
published Evaluation Criteria.  
The Sponsoring Agency or 
the Centre of Expertise 
(according to where 
responsibility for the 
procurement of the project 
lies in a particular instance), 
will have identified the most 
appropriate evaluation criteria 
for the project and these will 
have been made available to 
interested parties in line with 
the requirements within the 
Directives.  

83 

 
 
  
Thresholds and method of 
calculating the value of the 
contract 

Not defined 

Definition of service concessions 

Level of publication 

Article 2 §1 of the Law amending the 
Law of the Republic of Lithuania on 
Concessions defines Concession as : 
"…the authorisation granted under this 
Law by the awarding authority to the 
concessionaire in compliance with the 
concession contract under the terms 
and conditions set forth therein to 
engage in the economic activity 
connected with the design, 
construction, development, renovation, 
transformation, repairs, management, 
use and/or maintenance of 
infrastructure objects, to provide public 
services, manage and/or use state-
owned or municipal property (including 
the exploitation of mineral resources) 
where the concessionaire assumes 
under the concession contract all or 
part of the operating risk and 
undertakes the relevant rights and 
duties ." 

Article 9 (3) Tendering 
conditions shall be published in 
the supplement to the official 
gazette. By the decision of the 
awarding authority notice of the 
tendering conditions may be 
additionally published in the 
international, Lithuania’s 
national or regional press or 
other mass media. Full text of 
the tendering conditions 
approved by the awarding 
authority or clear and accurate 
reference as to the place and 
time when and where the 
relevant parts of the tendering 
conditions will be accessible to 
any interested person, the 
purchasing price (where set) of 
the documents indicated in the 
notice which the tendering 
conditions are specified, 
provided, however, that the text 
of the notice always contains a 
short characterisation of the 
subject the proposed 
concession.  

Lithuania 

Remedies 
Directive 

Not applicable, 
but the Law on 
Concessions 
provides for 
some sort of 
appeal 
procedure. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

 The Law of the Republic of 
Lithuania on Concessions 
applies to all works and service 
concessions awarded by 
contracting authorities, 
including in activities in sectors 
covered by Dir 2004/17/EC. 

Article 6. Procedure for Awarding 
Concessions  
Concessions shall be awarded 
following open public tendering 
procedure provided for in Section 
Two of Chapter III of this Law 
except in cases provided for in 
Section Three of Chapter III of this 
Law when concessions may be 
awarded not subject to tendering. 

Article 10.  
1) appropriate professional 
and technical qualification; 
2) equipment and other 
means necessary for all 
phases of activities that will 
be carried out under the 
proposed concession 
contract or feasible 
possibility of possession 
thereof; 
3) financial resources (own 
or borrowed funds) for all 
phases of works to be 
carried out under the 
proposed concession 
contract or feasible 
possibility of possession 
thereof after the conclusion 
of the concession contract. 
4) proper management and 
organisational experience; 
5) other terms and 
conditions laid down by the 
awarding authority.  

Article 14. (...) 
2. The criteria for evaluation and 
comparison of technical aspects 
of the tenders submitted by the 
tenderers may include the 
following requirements: 
1) technical soundness of the 
tender; 
2) operational feasibility the 
tender; 
3) quality of public services and 
measures ensuring continuity of 
service provision; 
4) environmental protection 
aspects of the tender; 
5) effect of the tender on the 
social and economic 
development of the country or 
an appropriate region.  
3. The criteria for evaluation and 
comparison of financial and 
commercial aspects of the 
tenderers’ tenders may provide 
for the following requirements: 
 1) the value of the amounts 
which the concessionaire 
proposes to set and collect as 
remuneration for the provided 
public services or to collect as 
local fees and charges under 
the concession contract, taking 
into account the planned time 
and periodicity of payment of 
such amounts; 
 2) the value of any payments to 
be made by the awarding 
authority under the concession 
contract, taking into account the 
planned time and periodicity of 
payment of such amounts; 
 3) the of any payments to be 
made by the concessionaire 
under the concession contract, 
taking into account the planned 
time and periodicity of payment 
of such amounts; 
 4) the costs related to design 
and construction activities, 
annual exploitation and 
maintenance costs, costs of 
proposed financial 
arrangements; 
 5) the extent of financial 
support requested from the 
state or the appropriate 
municipality by the awarding 
authority or any other state or 
municipal authority, should any 
be requested;  
 6) the feasibility and specifics of 
the proposed financing in 
accordance with the submitted 
documents relating thereto; 
  7) the acceptability to the 
tenderer of the proposed 
contractual terms and the 
conditioning circumstances.  

84 

 
 
  
Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Sans objet (vu l'inexistence de 
réglementation). 

Aucune réglementation. 
Pas d'information 
disponible sur la pratique 
suivie. 

Aucune réglementation. En 
principe, procédure libre, Pas 
d'information disponible sur la 
pratique suivie. 

A l'exception de l'obligation 
(résultant de l'annexe VII B 
de la directive 2004/18/CE) 
d'indiquer les critères 
d'attribution dans l'avis de 
marché pour les concessions 
de travaux relevant de la 
directive, aucune 
réglementation, Pas 
d''information disponible sur 
la pratique suivie. 

Remedies 
Directive 

Not applicable 
to service 
concessions. 
Probably the 
common rules 
of 
administrative 
law on 
remedies apply. 

Thresholds and method of 
calculating the value of the 
contract 

Pour les concessions de travaux, 
il n'y a que le seuil prévu par la 
directive 2004/18/CE (article 48 
de la loi du 25 juin 2009), Le 
calcul de la valeur des 
concessions de travaux est fait 
selon la même méthode que pour 
les marchés publics de travaux 
(article 48 précité qui renvoie à 
l'article 23 de la loi du 25 juin), 
Aucun seuil et aucune méthode 
prévus pour les concessions de 
services. 

Definition of service concessions 

Level of publication 

Au JOUE pour les concessions 
de travaux relevant de la 
directive 2004/18/CE (article 
253 du Règlement grand-ducal 
précité), Aucune obligation 
réglementaire pour les 
concessions de services et 
pour les concessions de 
travaux ne relevant pas de la 
directive, Pas d'informations 
disponibles sur la pratique 
suivie. 

Luxembourg 

Les définitions de concessions de 
travaux et de concessions de services 
des directives ont été transposées 
(article 3, § 3 et 4, et article 55, § 2, de 
la loi du 25 juin 2009 sur les marchés 
publics), Il n'y a aucune législation sur 
les concessions de services, Sur les 
concessions de travaux, le seule 
législation existante est celle résultant 
de la transposition des dispositions de 
la directive 2004/18/CE (articles 48 à 
50 de la loi du 25 juin précitée et 
articles 253 à 259 du Règlement 
grand-ducal du 3 août 2009 portant 
exécution de la loi du 25 juin), A 
l'exception de ces dispositions, la 
passation des concessions de 
services et des concessions de 
travaux n'est soumise à aucune 
législation, mais doit respecter les 
principes généraux de la commande 
publique. Selon les informations 
disponibles, les concessions de 
services seraient très rares (voire 
inexistantes) au Luxembourg, Par 
ailleurs, l'information est inexistante 
sur les pratiques suivies et sur 
l'existence éventuelle d'une 
jurisprudence nationale sur les 
concessions. 

85 

 
 
  
Definition of service concessions 

Level of publication 

Legal notice 296  "Financial 
Administration and Audit Act CAP.174) 
Public Procurement Regulations, 
2010" defines the service concessions 
as follows: " "public service 
concessions contract" means a public 
services contract except for the fact 
that the consideration for the services 
to be provided consists either solely of 
the right to exploit the service or in this 
right together with a payment." 
(Regulation 2). 

As far utilities are concerned, 
Subsidiary Legislation 174.06 "Public 
Procurement of Entities operating in 
the water, energy, transport and postal 
services sectors regulations" defines 
service concessions as follows:  " 
"service concession" is a contract of 
the same type as a service 
contract except for the fact that the 
consideration for the provision 
of services consists either solely in the 
right to exploit the service 
or in that right together with payment." 
(Regulation 1). 

Malta 

Netherlands 

Poland 

Same definition as the Directive for 
both service and works concessions in 
both Utilities and Classical sector. 
However, no legislative rules for 
utilities sector and very limited in 
classical sector. 

According to the Act on public works 
concessions and services 
concessions, a service concession is a 
contract, where a concession holder 
commits to perform the service against 
remuneration consisting either 
exclusively in the right to exploit the 
service or in this right together with 
payment, where the concession holder 
bears the major part of the economic 
risk of the concession and where 
payment cannot result in full recovery 
of the investment made by the 
concession holder.  

The only provisions of L.N. 
296/2010 applicable to service 
concessions are: 
Regulation 17(2) concerning 
remedies which reads: "Without 
prejudice to the application of 
regulation 65(2), these 
regulations [L.N. 296/2010] 
shall not apply to public service 
concession contracts,  provided 
that  ..."(see column " 
Remedies Directive")  and 
Regulation 65(2) which reads: 
"When a contracting authority 
grants to a body other than a 
contracting authority, 
regardless of its status, special 
or exclusive rights to engage in 
a public service activity, the 
instrument granting this right 
shall stripulate that the body in 
question must observe the 
principle of non-discrimination 
by nationality when awarding 
public supply contract to third 
parties."  
Regulation 18 of S.L. 174.06 
provides that: "These 
regulations shall not apply to 
works and service concessions 
which are awarded by 
contracting entities carrying out 
one or more of the activities 
referred to in regulations 3 to 7 , 
where those concessions are 
awarded for carrying out those 
activities." 

EU OJ (works concessions) 

Thresholds and method of 
calculating the value of the 
contract 

None provided for service 
concessions. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

None 

No rules 

No rules 

No rules 

Same as the Directive for works 
concessions,  calculation rules of 
classical Directive apply 

None 

No rules 

No rules 

No rules 

National Public Procurement 
Bulletin for both works and 
services concessions, Official 
journal of the EU for works 
concessions 

Publication of both works and 
services concessions does not 
depend on the value (no 
threshold). However, for other 
purposes, the value of a services 
concession is the estimated 
value, without VAT, of the 
services constituting its subject 
matter.  

All services including non-
priority services and utitilies, 
with the exception of 
telecommunication services 

Negotiated procedure 

On technical specifications: 
provisions similar to those 
in the Public Procurement 
Act, but simplified, i.a. 
requirement of recognition 
of equivalent norms, 
prohibition of references to 
a specific trademark. 
Selection criteria must be 
relevant to the subject 
matter of a concession. 

Award criteria must be 
disclosed in the concession 
notice, if possible together 
with their importance. No 
restrictions as to the content, 
award criteria may also refer 
to the characteristics of the 
bidder 

Remedies 
Directive 

Applicable only 
in certain 
conditions and 
to a certain 
extent to 
service 
concessions. It 
results from 
Regulation 17 
(2) of L.N. 296 
of 2010 that 
competent 
authorities have 
the choice to 
decide whether 
their decisions 
will be subject 
to the reviews 
procedures laid 
down in L. N. 
296/2010. 
Therefore, 
private 
parties/entities 
have 
themselves no 
right to the 
remedies 
procedure 
provided for 
under Directive 
2007/66/EC. 

Not applicable., 
but general 
system of 
remedies 
applies. 

 Remedies 
similar to those 
applicable to 
public 
contracts. 

86 

 
 
  
 
Definition of service concessions 

Level of publication 

Portugal 

Decree-law 18/2008 of 29 January 
(the Public Procurement code) covers 
works and servicess concessions. Art. 
407 defines «services concessions» 
as the contract under which the 
concessionnaire undertakes to 
manage for a certain period, on his 
own name and under his own 
responsability, an activity of public 
service provision, where consideration 
consists on the financial results of that 
management or on a direct payment 
by the contracting authority.Art. 413 
further adds that the contract shall 
imply a significant and effective 
transfer of risk to the concessionnaire. 

No specific definition in the OUG 
34/2006.  

Romania 

Works concessions falling 
within the scope of Dir. 
2004/18/EC: publication in the 
OJEU irrespectively of the 
estimated value of the contract.     
Works concessions in the 
utilities sector and services 
concessions: publication in the 
national Official Journal (Diário 
da República) irrespectively of 
the estimated value fo the 
contract. 

All concessions (services + 
works) should be published in 
the national electronic system 
of public tenders (SEAP), which 
has a public website. In 
addition, works concessions 
above 4.845.000 Euros must 
also be published at EU level in 
the EU Official Journal. It is 
possible that this obligation of 
publication at EU level also 
applies to some service 
concessions, but rules are not 
very clear.  

Tender notices published in 
SEAP should contain a 
minimum level of information, 
listed in annex 3B of the OUG 
34/2006. 

Calculation of the value of the 
contract is governed by the same 
rules as those applicable for 
public contracts (see art. 219 of 
OUG 34/2006). 

The provisions of OUG 34/2006 
are equally applicable to works 
concessions and to services 
concessions. However, these 
provisions are not applicable to 
concessions awarded by 
contracting authorities acting in 
the "utilities" sectors, if such 
concessions are granted in 
relation to the performance of 
one of such "utilities" activities. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Remedies 
Directive 

Thresholds and method of 
calculating the value of the 
contract 

On applicable thresholds see 
previous cell. The value of the 
contract is the maximum value of 
the economic benefit which,  
according to the procedure 
adopted, can be obtained by the 
contractor with the full 
performance of the contract (see 
Article 17). 

All services including non-
priority services and services in 
the «utilities» sector. 

In addition to technical 
specifications used for 
public contracts in general, 
tender documents for the 
award of concessions shall 
include a code on the 
exploitation of the service 
or work, which shall cover 
the rights and obligations 
of both parties to the 
contract. This code shall 
also include, whenever 
necessary, rules on the 
protection of the interests 
of  users (of the services or 
works to be exploited, see 
Art. 44). Tender 
documents of award 
procedures related to the 
award of PPPs must 
submit to competition 
aspects of its 
implementation related to 
charges for the contracting 
authority as well as direct 
and indirect risks borne by 
it arising from the specific 
model of contract. 

The same rules as those 
applicable to public 
contracts (please see art. 
218 of OUG 34/2006)  

The same as for public 
contracts in general. 

The Remedies 
Directive apply 

All award procedures are 
accepted including the negotiated 
procedure with prior publication of 
a contract notice (see Arts. 31 and 
33). The competitive dialogue is 
excluded for the award of 
concessions in the «utilities» 
sector (see Art. 33 (2)).Direct 
awards are possible for relevant 
reasons of public interest (see Art. 
31 (3)). 

TBC 

All award procedures (referred to 
in the Directives in relation to 
public contracts), with the 
exception of the negotiated 
procedure without publication of a 
tender notice, are accepted in 
Romania for the award of 
concessions contracts (please 
see art. 2181 of OUG 34/2006). 

Applicable to 
service 
concessions 
(art. 1 of OUG 
34/2006). 

87 

 
 
  
 
Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Not defined. 

The law refers to the 
general procedure for 
above-threshold service 
contracts (IIA services) 

1. Open procedure2. Restricted 
procedure3. Negotiated procedure 
with publication of a contract 
notice4. Competitive dialogue 

The law refers to the general 
procedure for above-
threshold service contracts 
(IIA services) 

Definition of service concessions 

Level of publication 

Public Procurement Act 25/2006, 
Article 15(2) “Service concession” is a 
contract of the same type as a service 
contract, except for the fact that the 
consideration for the services to be 
provided consists either solely of the 
right to exploit the services provided 
for an agreed time or of that right 
together with payment. In a 
concession contract, the contracting 
authority and the concessionaire 
agree the scope of exploitation of the 
service provided, which may include 
the receiving of its benefits as well as 
the amount and terms of payment, if 
any. 

Article 67(2) Contracting 
authorities shall call for a 
concession by publishing a 
concession notice. The 
concession noticea) concerning 
building works shall be sent to 
the Publications Office and the 
Office,b) concerning services 
shall be sent to the Office.(3) 
Contracting authorities shall 
send the Office a contract 
award notice within 48 days 
from the conclusion of a 
concession contract.(4) When 
drafting and sending notices 
pursuant to paragraphs 2 and 
3, contracting authorities shall 
follow Article 23 (1). 

Slovakia 

Thresholds and method of 
calculating the value of the 
contract 

No thresholds for service 
concessionsArticle 5Rules for 
Calculating the Estimated 
Contract Value(1) For the purpose 
of this Act, the estimated contract 
value is determined as the price 
excluding the value added tax. 
The estimated contract value 
must be based on the price at 
which a similar or comparable 
object of contract is usually sold 
at the time when the contract 
notice or notice used as a means 
of calling for competition is 
dispatched for publication. If 
publication of such notice is not 
required, the estimated contract 
value must be based on the price 
at which the same or comparable 
object of contract is usually sold 
at the time when the contract 
award procedure is commenced.+ 
general rules of the Public 
Procurement Act apply according 
to the PP Directives principles for 
repetition of concessions, division 
in lots or separate contracts, etc. 

Remedies 
Directive 

The law does 
not state 
expressly that 
service 
concessions 
claims may be 
submitted 
under the 
normal review 
procedure, but 
Review Body 
experts 
interpret the law 
in the way 
enabling these 
claims to be 
brought into the 
normal review 
system 
(complaint with 
the Remedies 
Directive) on 
the basis of 
'miscellaneous 
claims'. 

88 

 
 
  
Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Not defined 

Not defined 

Not defined. 

Article 93 
(performing commercial public 
services) 
Where the subject of a services 
concession is the performance 
of commercial public services 
or activities provided in a 
manner and under conditions 
applicable for commercial 
public services, the selection of 
concessionaire and operation of 
the concession relationship 
shall also be governed by the 
rules of the act regulating 
commercial public services. 
Article 94 
(performing other activities in 
the public interest) 
Where the subject of a services 
concession is the performance 
of other provided in the public 
interest, the selection of 
concessionaire and operation of 
the concession relationship 
shall also be governed mutatis 
mutandis by the rules of the act 
regulating commercial public 
services. 

Thresholds and method of 
calculating the value of the 
contract 

4. METHODS OF PROMOTING 
PUBLIC-PRIVATE 
PARTNERSHIP 
Article 8 
(assessing the possibilities for 
public-private partnership) 
(1) In order to promote public-
private partnership, in selecting 
the method of implementing the 
project (procedure) that might be 
the subject of public-private 
partnership in the sense of Article 
2 of this Act, the public partner 
must assess whether it can be 
carried out as a public-private 
partnership (assessing the 
grounds of project feasibility and 
comparison of options or other 
projects). Assessments shall not 
be obligatory in the case of 
projects provided by a regulation 
referred to in the fourth paragraph 
of this Act. 
(2) In the case of a value greater 
than 5,278,000 euros the public 
partner may carry out the 
procurement of works or services 
as public procurement only if in 
respect of the economic and other 
circumstances of the project it has 
determined that the procedure 
cannot be carried out in one of the 
forms of public-private partnership 
or that this is not economically 
justified. 

Definition of service concessions 

Level of publication 

Article 42 of Public-Private 
Partnership Act  
Irrespective of the form of 
selection instrument, a public-
private partnership contractor 
shall be selected, unless 
otherwise provided by law, on 
the basis of a public tender, 
notice of which must also be 
published on the Internet. 

Slovenia 

Article 26 of Public-Private Partnership 
Act  
- a concession; i.e. a bilateral legal 
relationship between the state or self-
governing local community or other 
person of public law as the awarding 
authority and a legal or natural person 
as a concessionaire, in which the 
awarding authority awards to the 
concessionaire the special or 
exclusive right to perform a 
commercial public service or other 
activity in the public interest, which 
may include the construction of 
structures and facilities that are in part 
or entirely in the public interest 
(hereinafter: concession partnership),  
Article 92 
(concept of service concessions) 
Where the subject of a concession 
partnership is the performance of 
commercial public services or 
activities provided in a manner and 
under conditions applicable for 
commercial public services, or other 
activities whose performance is in the 
public interest, or the construction of 
structures and facilities or individual 
parts thereof, whose concessionaire 
has during the period of the 
relationship the right to their use, 
operation and exploitation or where 
the right to use, operate and exploit 
structures and facilities is combined 
with payment for executing the works 
and this does not involve a works 
concession (hereinafter: services 
concession), the selection of 
concessionaire and operation of the 
concession relationship shall be 
governed by the act regulating 
concession partnerships 
Article 27 
(distinction between public 
procurement and concession 
partnership) 
(1) If the public partner bears the 
majority or entirety of the commercial 
risk involved in operating a public-
private partnership project, the public-
private partnership, irrespective of its 
title or arrangement in a special law, 
for the purposes of this Act shall not 
be deemed to be a concession, but a 
public procurement partnership. 

Remedies 
Directive 

Not applicable 
to concessions 

89 

 
 
  
Definition of service concessions 

Level of publication 

Article 8, Public Contracts Law, 2007 
defines service concessions as the 
contract in which a public authority 
entails a juridical or physical person 
the management of a public service, 
whose provision falls within the scope 
of the competences of the public 
authority. Articles 251 and 253,a) 
settle down that through a concession 
a public administration could manage 
indirectly services of its own 
competence, whenever they could be 
exploited by private operators. In 
concessions, the concessionaire will 
assume the risk of the contract. 

Spain 

Publication must be at national 
level in the "Boletín Oficial del 
Estado" or at regional level in 
the "Diario Oficial de la 
Comunidad Autónoma" 
(depending on the contracting 
authority). Works concessions 
must be published at EU level 
in the OJEU (article 126). 

Thresholds and method of 
calculating the value of the 
contract 

Works contracts and works 
concessions above 5.278.000 
euros euros and supply and 
services contracts above 18.000 
euros shall be awarde by open, 
restricted (see Art. 122). 
Negotiated procedures can be 
used in special circumstances 
(see Arts. 154 and 156) or, for 
services concessions only, when 
the value of the contract is bwlow 
500.000 euros. Competitive 
dialogue can be used only in case 
of  specially complex contracts. 
On the calculation of the value of 
the contract, Art 76 (3) provides 
on works concessions that the it 
shall be taken into consideration 
the value of the works and the 
estimated value of the expenses 
needed for the execution of 
theses works. Regarding  
services concessions, article 
156,b) specifies that the 
negotiated procedure can be used 
if the value of  all the expenses 
the concessionaire has incurred 
to start the provision of the 
service is below 500.000 euros. 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

Utilities and non-priority 
services are covered by Public 
Contracts Law and the 
applicable procedures. 

The same as for public 
contracts in general. 

As a general rule, use of an open 
and restricted procedure. 
Competitive dialogue as exception 
for complex contracts provided by 
law. Negotiated procedure only for 
special cases established by law 
namely: 1) The same as in articles 
30 (1) (a), 30 (1) (b),  31 (1) (a), 
31 (1) (b), 31 (1) (c)  of Directive 
2004/18/EC, 2) when the contract 
has been declared secret or 
reserved; when its execution must 
be accompanied by special 
security measures fixed the 
legislation in force; or when it is 
necessary for the protection of the 
essential interests of the State. 3) 
In the case of contracts included 
under article 296 of the EC 
Treaty. 

Use of those related to 
public contracts in general. 
In addition, the law 
requires prior 
specifications of the legal 
regime related to the 
service exploited, this is to 
say: " there must be 
express declaration that 
the activity in question is 
undertaken by the 
Administration in question, 
attribution of the the 
necessary administrative 
competences, fixing the 
duration of the prestation in 
favour of the administered 
citizensm and regulation of 
the legal, economic and 
administrative aspects 
relating to the prestation of 
the service". In the relevant 
cases, the legal regime of 
tolls will also be 
determined (whenever 
applicable, see Arts. 
articles 116 and 117). 

Remedies 
Directive 

Applicable 
whenever "the 
budget for the 
expenses of the 
first 
establishment, 
excluding VAT, 
is above 
500.000 euros 
and its duration 
exceeds 5 
years". 

Sweden 

Definition of service concession in § 
17 of the public procurmement act and 
in § 18 of the utilities act: "same type 
of contract as a service contract, 
expect that the consideration consists 
partly or completely of the right to 
exploit the service. 

National 

Not defined 

No limitations 

Not defined. 

Not defined. 

Not defined. 

Not applicable. 

90 

 
 
  
Definition of service concessions 

Level of publication 

The Public Contracts Regulations SI 
2006 No.5 (classical sector) define a 
works/services concession, as a public 
works/services contract under which 
the consideration given by the 
contracting authority consists of or 
includes the grant of a right to exploit 
the works/services to be carried out 
under the contract. (art.2) Service 
concessions are excluded from this 
Law (art.6)- The Utilities Contracts SI 
2006 No.6 (utilities sector) provides 
the same definition, except that the 
term "contracting authority" is replaced 
by "utility". (art.2)Both types of 
concessions are expressly excluded 
from this Law (art.6) 

UK 

The Public Contracts 
Regulations SI 2006 No.5, 
provides for publication in the 
OJEU, for works concessions 
falling within the scope of 
Dir.2004/18 (art.36)On service 
concessions, N/A, as these are 
excluded from this Law (art.6)- 
With regard to The Utilities 
Contracts SI 2006 No.6 –N/A, 
as both types of concessions 
are expressly excluded from 
this Law (art.6)                               
N.B For those cases which 
fall completely outside the 
Directives (i.e concerning 
service concessions for the 
classical sector, and both 
services and works 
concessions for the utilities 
sector), as well as for works 
concessions which only fall 
partly within the classical 
Directive, guidance has been 
published by the Office of 
Government Commerce in 
March 2008, which explains 
the need that tendering 
procedures have to comply 
with the fundamental Treaty 
principles.  

Thresholds and method of 
calculating the value of the 
contract 

The Public Contracts Regulations 
SI 2006 No.5, applies only for 
works concessions with an 
estimated value above the 
threshold set in 2004/18. (art.36). 
The estimated value for a works 
concession, is the value of the 
consideration which the 
contracting authority would expect 
to give for the carrying out of the 
works, if it did not propose to 
grant a concession (art.36). On 
service concessions, N/A, as 
these are excluded from this Law 
(art.6)- With regard to The Utilities 
Contracts SI 2006 No.6 –N/A, as 
both types of concessions are 
expressly excluded from this Law 
(art.6) 

Services covered 

Technical specifications 
and selection criteria 

Award procedure 

Award criteria 

The Public Contracts 
Regulations SI 2006 No.5 
provides with regard to works 
concessions, that the same 
types of contracts are covered, 
as in the case of public works 
contracts (art.2). On service 
concessions, N/A, as these are 
excluded from this Law (art.6)- 
With regard to The Utilities 
Contracts SI 2006 No.6 –N/A, 
as both types of concessions 
are expressly excluded from 
this Law (art.6) 

The Public Contracts 
Regulations SI 2006 No.5 
provides that the same 
technical specifications 
that apply to public works 
contracts, also apply with 
regard to work 
concessions. (articles 5 & 
9). On selection criteria, 
however, N/A, as no 
similar provision exists. On 
service concessions, N/A, 
as these are excluded from 
this Law (art.6)- With 
regard to The Utilities 
Contracts SI 2006 No.6 –
N/A, as both types of 
concessions are expressly 
excluded from this Law 
(art.6) 

The Public Contracts Regulations 
SI 2006 No.5 does not make any 
provision on the award 
procedures to be followed for 
awarding works concessions – 
N/A.On service concessions, N/A, 
as these are excluded from this 
Law (art.6)- With regard to The 
Utilities Contracts SI 2006 No.6 –
N/A, as both types of concessions 
are expressly excluded from this 
Law (art.6) 

The Public Contracts 
Regulations SI 2006 No.5 
does not make any provision 
on the award criteria for 
awarding works concessions 
– N/A.On service 
concessions, N/A, as these 
are excluded from this Law 
(art.6)- With regard to The 
Utilities Contracts SI 2006 
No.6 –N/A, as both types of 
concessions are expressly 
excluded from this Law (art.6) 

Remedies 
Directive 

Not applicable 
to service 
concessions. 

91 

 
 
  
Annex III — List of consultations with stakeholders  

2009 

January 
March 
September 

October 

2010 

December 
March 

April  
June 

July 

September 

October 
December 

2011 

January 

February 

March 

•Meeting with Veolia on PPP's and concessions 
•Meeting with E3PO 
•Meeting with BOUYGUES 
•Meeting with ASECAP 
•Meeting with FIEC 
•Meeting with IGD 
•Meeting with EDF 
•Meeting with CARITAS on concessions and German Social 
Services system 
•Meeting with SUEZ on concessions and PPPs 
•Meeting with BDEW German Association of Energy- and Water 
Industries 
•Meeting with BDI 
•Meeting with UTP 
•Meeting with Veolia 
•Meeting with Europabüro des DStGB 
•Meeting with Committee of the Regions 
•Meeting with FIEC - PPPS, concessions 
•Meeting with BUSINESSEUROPE 
•Meeting with ports association ESPO 
•Meeting with L'Union sociale pour l'habitat-Représentation 
auprès de l'UE 
Housing Europe Center, concession and social housing 
•Meeting with BDI 
•Meeting with CEMR 
•Meeting with Maison Européenne des pouvoirs locaux français 
•Meeting with French Local public Entreprises' 
•Meeting with Council of European Municipalities and Regions 
•Meeting with the CoR rapporteur 
•Meeting with Representation of the State of Baden Württemberg 
•Meeting with Representation NRW - Ministerium für Wirtschaft, 
Mittelstand und Energie des Landes Nordrhein-Westfalen 
•Meeting with Land Mecklenburg-Vorpommern 
•Meeting with DIHK 
•Videoconference with EIB 
•Meeting with E3PO 
•Meeting with SUEZ Environnement 
•Meeting with VATTENFALL AB | European Affairs  
•Meeting with Hutchison Port Holdings  
•Meeting with GDF SUEZ 
•Meeting with VEOLIA ENVIRONNEMENT  
•Meeting with SUEZ Environnement 
•Meeting with ESPO 
•Meeting with CEEP  
•Meeting with BUSINESSEUROPE 
•Meeting with UITP 

92

 
 
 
 
 
•Meeting  with  European  Affairs  Advisor  Union  Française  de 
l'Electricité 
•Meeting with ESPO 
•Meeting with CEEP 
•Meeting with VEOLIA 
•Meeting with ASECAP 
•Meeting with Europolitique 
•Meeting with CEEP  
•Meeting with SUEZ Environnement 
•Meeting with ETUC 
•Meeting with ETUC 
•Meeting with CEEP 
•Meeting with SUEZ Environnement 
•Meeting with E 3PO  
•Meeting with CEEP  
•Meeting with Groupe Keolis  
•Meeting with GDF Suez 

April 
May 

July 
September 

October 
November 

December 

93

 
 
 
Annex  IV  —  Summary  of  the  report  «Public  services  in  the  European  Union  and  in  the  27 
Member States» (potential for concession contracts) 

Information on PPPs and public services in Member States indicating the potential 
use of concessions 

Additional  information  on  the  use  of  concessions  in  the  EU  may  be  found  in  the  study 
conducted  by  the  European  Centre  of  Employers  and  Enterprises  providing  Public  services 
(CEEP) on the provision of services of general interest (SGIs) in Europe. The study entitled 
"Public Services in the European Union and in the 27 Member States" was published in May 
2010. 

The report provides an indication on Member States' dynamics concerning the externalisation 
of the provision of some important services and therefore also on the potential future use of 
concessions.1 

In this regard, certain general trends can be identified, confirming the growing need for a clear 
legal  framework  governing  externalisation  or  delegation  of  public  tasks,  notably  PPPs  and 
thus, concessions (which are estimated to constitute approximately 60% of all PPPs). 

Indeed,  most  of  the  EU  Member  States  referred  to  in  the  report  have  undertaken  measures 
aiming  at  a  greater  involvement  of  private  entities  in  the  provision  of  public  services.  This 
trend is particularly strong in Member States such as France or Spain, with well established 
legal  environment  for  concessions  and  where  concessions  have  traditionally  played  an 
important  role,  but  also  in  such  countries  as  the  UK,  Italy,  Germany,  Portugal,  Greece  and 
some new Member States, with notable examples of Bulgaria, Czech Republic and Hungary.   

This involvement frequently takes a form of PPPs, therefore concessions or public contracts 
awarded  in  certain  cases  to  mixed  entities  (Institutionalised  PPPs).  PPPs  are  of  particular 
interest  to  those  Member  States  which  are  faced  with  budgetary  constraints,  as  well  as  to 
those  with  the  imminent  need  to  upgrade,  modernise  or  develop  public  services 
infrastructures.  This  is  the  case  of  many  new  Member  States,  such  as  Bulgaria,  Czech 
Republic,  Hungary,  Poland  or  Lithuania,  but  also  in  certain  old  Member  States,  such  as 
Germany. 

The  benefits  of  PPPs  have  been  recognised  in  many  Member  States  and  such  forms  of 
providing public services and infrastructures are often promoted by specialised PPP agencies. 
However, in spite of national legislation and institutions backing development of PPPs, many 
of these Member States are still at an early stage of the process. In many sectors, direct public 

1 However, in using this information one has to bear in mind that: 

a) the study covers both the provision of market (services of general economic interest) and nonmarket services 

(which are not covered by the initiative on concessions); 

b)  SGEI are not defined in the Treaty or in secondary legislation and refer only to a part of the services that can 

be awarded as concessions; 

94

 
 
 
 
 
 
 
 
 
 
 
                                                 
 
provision  of  services  or  provision  by  fully  public  bodies  is  still  predominant  (i.a.  water  in 
Bulgaria and Portugal, local and non-network public services in Italy) although devolution of 
powers to regional and local entities seems to be, in some cases, stimulating the use of PPPs 
(Czech Republic, Spain, Slovakia). Finally, there are also Member States where the provision 
of public services by private entities remains rare or inexistent (Denmark, Luxembourg). 

Under  "New  Public  Management"  (NPM)  the  study  examines  a  broad  movement  of  EU 
countries  which  have  initiated  a  reform  processes  to  increase  efficiency  of  public  action.  In 
this  context,  public  authorities  are  considered  to  be  playing  a  greater  role  as  a  purchaser, 
organizer and controller rather than as producer. The general trend is to gradually reduce the 
direct  intervention  of  public  authorities  and  to  involve  the  private  sector.  This  evolution 
indicates further potential for the increased use of concessions. 

Situation per Member State: 

AUSTRIA 

Provision  of  services  of  general  interest  is  partly  handled  by  outsourced  companies. 
According to assessments2, the management of local public services in Austria is provided by 
around 1200 local companies. 

BELGIUM 

Belgium  is  marked  by  the  logics  of  the  NPM  and  begins  to  see  the  development  of 
autonomous  regulatory  agencies  to  support  the  liberalisation  of  certain  sectors  (post  and 
telecommunications,  audiovisual  etc.).  Flanders  has  adopted  a  specific  legislation  to 
encourage  and  facilitate  the  PPPs3.  However,  in  2005,  less  than  2%  of  Belgian  public 
investment took the form of PPP (urban centres, schools, sport, and local transportation). 

BULGARIA 

From 1998, after the beginning of the privatisation process of public property, the procedure 
most  often  used  for  re-development  of  public  enterprises  and  infrastructure  used  to  provide 
public services, is the procedure of concession4. 
In  a  period,  between  1998  and  2000,  concessions  were  concluded  in  the  area  of  water, 
heating,  electricity,  and  also  functions  relating  to  waste  treatment  and  transport.  Currently, 
most of economic and non economic services of general interest are run by private or mixed 
companies.  In  the  field  of  services  of  general  economic  interest,  the  involvement  of  the 
private sector often results from the privatisation of commercial companies established by the 
state  or  the  municipalities  for  the  purpose  of  the  delivery  of  public  services.  Also,  the 
provision  of  public  services  by  the  private  sector  is  governed  not  only  by  the  concession 
regime but also by a set of sectoral laws and regulations.  
In 2006, an initiative of the Ministry of Finance formally announced the support of PPPs in 
order  to  improve  the  quality  of  public  services  and  investments  in  national  infrastructure. 

 Dominique  Hoorens,  Les  collectivités 

2 
compétences et finances, Dexia, 2008, p. 187. 
3 

 http://www2.vlaanderen.be/pps/documenten/flemish_ppp_decree_english_version.pdf  

territoriales  dans 

l’Union  européenne.  Organisation, 

4 

 Concession Act of 2005. 

95

 
 
 
 
 
 
 
 
 
 
                                                 
However,  the  concept  of  PPP  is  not  enshrined  in  the  legislation,  PPP  practices  being 
developed  on  the  basis  of  concession  regime  and  commercial  law.  In  the  water  sector,  the 
concession granted for the provision  of  water  supply  services  in Sofia is the only  delegated 
management in this sector5. 

CZECH REPUBLIC 

The implementation of the regional reform and the delegation of some State powers to local 
authorities are considered opportunities to develop new methods of public service delivery by 
different levels of administration through horizontal and vertical cooperation, and partnership 
with the third sector6.  
External  forms  of  delivery  dominate  particularly  in  the  areas  of  waste  and  sewerage, 
municipal  transport,  cleaning,  street  lighting  and  municipal  housing.  70%  of  the  population 
receives  water  services  from  private  companies,  the  highest  percentage  of  the  new  EU 
Member States.  
Czech  municipal  firms  were  dominantly  established  by  privatisation  of  former  communal 
services organizations.  
The Czech Government adopted in 2004 a policy introducing PPPs as a standard tool for the 
provision of public services and public infrastructure. In practice, however, there is still much 
room for development of PPPs7.  

Scale of external forms (contracting-out) of delivery of selected local public services in Czech 
municipalities (% among all used service delivery methods) 

Service 

2000 

2004  

Waste 

Cemeteries 

71 

42 

45 

green 

Public 
areas 
Communications  31 
23 
Public lighting 

80 

26 

24 

38 
60 

GERMANY  

For  the  management  of  public  services,  the  infranational  authorities  or  their  associations 
(mostly unions of municipalities - Zweckverbände, but also associations of municipalities and 
regional  associations)  tend  to  have  recourse  to  local  public  companies  subject  to  company 
law.  In  practice,  the  vast  majority  of  local  public  companies  are  still  owned  by  the  local 
communities  (mainly  in  the  sectors  of  water  supply  and  energy,  waste  treatment,  transport, 
housing, cultural services and hospitals).  

5 
 Maria  Schueler,  «Bulgaria»,  in  Markus  Krajewski,  Ulla  Neergaard,  J.  van  de  Gronden  (eds.),  The 
Changing Legal Framework for Services of General Interest in Europe, TMC Asser Press, The Hague, 2009, p. 
481. 
6 

 OECD, Examens territoriaux de l’OCDE. République tcheque, p. 121-122 

7 
http://www.mfcr.cz/cps/rde/xchg/mfcr/xsl/en_ppp_czech_republic_47747.html  

information 

important 

about 

some 

 For 

PPP 

projects 

see 

96

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
The debate on the virtues of PPPs, inspired by inter alia economic pressures from the rising 
costs of social benefits and the costs of modernising local infrastructure. Recent assessments 
indicate  about  5%  of  PPP  projects  in  the  total  local  investment  (school,  transport,  culture, 
urban development)8. 

DENMARK 

Denmark has been more reluctant to implement the marketisation aspect of NPM; it tries out 
new management ideas but not primarily those concerned with markets and contracting9. That 
explains the less developed PPP policy and relatively few PPP projects. The official Danish 
PPP  policy  paper  (Action  Plan  for  Public  Private  Partnerships)  was  first  issued  in  January 
200410. 

ESTONIA 

Local  authorities  may  arrange  the  provision  of  certain  public  services  through  the  private 
sector. Contracting out is widely use in practice, especially in the case of technical tasks. 

SPAIN 

Spain  has  a  long  tradition  of  delegating  management  of  local  public  services  to  the  private 
sector. With the opening of many areas of competition, the model of delegated management is 
now  more  widely  used,  private  structures  replacing  the  local  government  (in  the  area  of 
heating and water for example). 
The delegation of a public service to a public entity may take four different forms - contracts 
of indirect provision of public services: a concession (concesion) to a private undertaking that 
will provide the public service and assume the economic risk resulting from its exploitation; 
the  “interested”  provision  (gestion  interesada),  a  technique  rarely  used,  whereby  the  private 
party  provides  the  service,  but  both  this  party  and  the  public  body  share  the  results  of  the 
activity  according  to  proportions  previously  agreed  in  the  contract;  the  “agreement” 
(concierto) between the public administration and a private party that was already supplying 
the  service  and  that  receives  fixed  compensation;  and  an  institutionalised  public  private 
partnership  in  the  form  of  a  mixed  capital  entity,  the  capital  of  which is  held  jointly  by  the 
contracting entity and the private partner. 
Concessions and mixed capital companies are the two most frequently used delegation forms 
in the area of economic public services, especially at local level. The water and waste services 
are  most  often  managed  by  concession  (e.g.  for  water  and  wastewater,  public  monopoly  in 
Madrid, private monopoly in Barcelona, PPP). The legal regime and the effects of concession 
depend on whether the activity has been reserved, or remains open to the free market.  
The concierto is habitually employed in the field of social public services, such as education, 
hospitals and social care services (e.g., elderly homes)11.  

8 

9 

 Dominique Hoorens, Les collectivités territoriales dans l’Union européenne. Organisation, compétences et 
finances, Dexia, 2008, p. 163. 

 The same approach as in the two other Scandinavian states. 

10 
 Carsten Greve, Graeme Hodge, “Public-Private Partnership: a comparative perspective on Victoria and 
Denmark”,  in  Tom  Christensen,  Per  Laegreid,  Transcending  new  public  management:  the  transformation  of 
public sector reforms, Ashgate, 2007, 179 
11 
challenging legal framework for services of general interest in Europe, T.C.M. Asser Press, 2009, pp. 320, 312. 

 Luis  Arroyo  Jimenez,  in  Markus  Krajevski,  Ulla  Neergaard,  Johan  van  de  Gronden  (eds.),  The 

97

 
 
 
 
 
 
 
 
                                                 
Since 2003, PPP has developed in Spain, mostly in the sectors of transportation, infrastructure 
and hospital care12. 

FINLAND 

Municipalities  may  purchase  public  services  from  various  service  providers  (other 
municipalities,  federation  of  municipalities,  public  sector  organisations,  and  private 
providers). The recent developments show a tendency to make stronger the private provision 
of public services which play an important role in the sectors of energy (highly competitive), 
day-care, elderly care and even hospital and health services. 
Development  of  PPP  in  public  services  provision  is  mainly  focused  on  investment  projects 
aiming  at  development  of  infrastructure  (public  buildings  like  schools  and  motorways  and 
railways).  

FRANCE 

The  model  of  delegated  management13  is  widely  present  in  the  areas  of  industrial  and 
commercial  services,  private  structures  substituting  for  the  public  authorities.  The  delegate 
operator  may be  a private or a  public local company (mixed company -  société d’économie 
mixte/SEM).  
In  the  sector  of  transport  (except  for  rail),  the  local  authorities  generally  use  delegated 
management14. In urban public transport in provincial France, the share of direct management 
tends  to  stabilise  around  10%  (from  1997  to  2005).  It  is  governed  by  régies  with  financial 
autonomy, in the small networks (for a total of about twenty networks in direct management) 
and EPIC for large networks. Compared to all public transport networks, direct management 
concerns  rather  the  small  networks  (15  of  19  régies  in  2005  covering  fewer  than  100  000 
inhabitants).  For  bigger  networks,  organizing  authorities  tend  to  use  a  specialised  private 
provider. The Communities (urban agglomerations,  municipalities)  delegate  extensively;  the 
municipalities and mixed unions (syndicats mixtes) delegate less. 
The water sector is dominated by delegated management: in 2004, over 80% of the population 
is served by private companies (some remunicipalisations in Grenoble, 1994; Castres, 2003; 
Cherbourg,  2005;  Paris,  2010).  In  waste  water  delegated  management  covers  about  55%  of 
the population. 
More recently, at  the  level  of  State  public services, NPM led the state to divest some of its 
functions  of  service  operator,  in  favour  of  the  role  of  regulator  of  activities  entrusted  to 
private operators. 
This change of the conception of the role of the State, has particularly led to a multiplication 
of  privatisations,  the  development  of  public-private  partnerships15  and  the  emergence  of 
numerous regulatory agencies, under the label of independent administrative authorities. 

 Dominique  Hoorens  (dir.),  Les  collectivités  territoriales  dans  l’Union  européenne.  Organisation, 

12 
compétences et finances, Dexia, 2008, p.335. 
13 

 See http://www.eurosig.eu/article78.html  

 Excepting Paris –Régie autonome des transports parisiens RATP, and several others (régies with only 

14 
financial autonomy for small networks, and EPIC for larger networks) 
15 

 Since  the  ordinance  of  June  2004  and  establishment  of  May  2005  of  Mission  d’appui  aux  partenariats 
public-privé (MAPPP). 

98

 
 
 
 
 
 
 
 
                                                 
GREECE 

Over recent years Greece has seen significant participation by the private sector, by means of 
PPPs,  in  the  construction  and  management  of  projects  involving  in  particular  major 
infrastructures  or  specific  construction  projects  (airport,  bridge,  and  motorway).  PPPs  are 
regulated by the Act 3389/2005 ‘Partnerships between the Public and Private Sector’ which 
covers only partnerships with a budget of up to 200 million euros16. 

HUNGARY 

In  Hungary,  both  simple  contract  (for  example  between  municipalities  and  privately  owned 
schools  providing  a  public  service,  or  between  family  physicians,  who  are  private 
entrepreneurs, and the national health insurance), and concessions are common. 
PPP  is  a  relatively  new  phenomenon  and  is  used  in  the  development  of  the  infrastructure 
necessary for the provision of services in a limited range of sectors: (i) in the  field of  sport 
services (the building of gymnasiums, swimming pools, sports halls), (ii) road transportation 
(the building of motorways), (iii) cultural services (the “Palace of Arts” in Budapest), and (iv) 
secondary and higher education (the building and renovation of student halls and dormitories). 
Some  prisons  are  also  being  built  and  reconstructed  in  the  framework  of  PPP  programmes. 
The yearly budgetary spending on PPP programmes is around 80-100 billion HUF. 

IRELAND 

Since  the  National  Development  Finance  Agency  Act  2002,  local  authorities  may  establish 
joint  ventures  in  the  form  of  PPP.  At  local  level,  most  PPPs  are  concluded  in  the  areas  of 
water  and  sewerage.  At  national  level  the  PPP  projects  involve  the  construction  of 
roads/carriageway/services areas on the national roads network, building projects for services 
of justice, health, education, culture, etc17.  

ITALY 

In  the  past  two  decades,  the  management  methods  of  public  service  were  enlarged  by  the 
Italian legislator both for national and local public services. Direct provision is widespread in 
most  local  public  services  and  in  all  non-network  activities.  Delegated  management  by 
concession  was  introduced  in  the  Italian  legal  order  by  the  Law  n°103  of  29  March  1903 
under  the  public  law  regime.  Today  it  is  used,  at  national  level,  in  the  public  broadcasting 
sector  and  at  regional-local  level  mostly  in  the  areas  of  regional  and  local  transport  sectors 
and other local services such as childcare, and school transport and meals.  
The third (ie, voluntary) sector, composed of a complex of institutions placed between State 
and market, plays an important role today. These are privately organised entities which aim to 
produce and supply social services of general interest. The legislation permits contracting out 
for  the  supply  of  social  services  and  attributes  to  Regions  the  function  to  take  measures  in 
order to regulate the relationship between local authorities and the third sector, with particular 
regard  to  the  "contracting  out  system"  of  services  to  individuals.  It  belongs  to  public 
authorities  to  establish  forms  of  collaboration  with  voluntary  organisations.  Municipalities 
may  purchase  services  and  interventions  organized  by  the  third  sector  or  may  contract  out 

16 

17 

 P.C. Spyropoulos, Theodore P. Fortsakis, Constitutional Law in Greece, Kluwer Law International, p. 176. 

 http://www.ppp.gov.ie/; http://www.environ.ie/en/DevelopmentandHousing/PlanningDevelopment/PPP/ 

99

 
 
 
 
 
 
 
 
 
                                                 
their management while respecting the national and EU rules which regulate the contracting 
out  of  services  by  the  government.  Municipalities  contract  out  based  on  the  most 
economically advantageous tender having regard to specific qualitative elements. 

Since  the  1990s,  the  use  of  PPP  has  been  widespread  in  Italy,  primarily  in  the  sectors  of 
transport infrastructure, utilities, hospital health services, housing, management of waste, etc. 
A  special  public  structure  was  created  in  2000  to  support  investment  projects  in  the  public 
sector (Unita Tecnica Finanza di Progetto - UFP). In 2006, the work concession under private 
initiative was the most widespread procedure in the Italian PPP market; the service concession 
accounted for 23,6% in value of total PPP market18.  

LITHUANIA 

Municipal  institutions  and  administration  may  not  provide  public  services,  except  for  the 
cases  provided  by  law.  They  shall  be  provided  by  budgetary  and  public  establishments, 
municipal undertakings, companies with share capital and other entities. Public services shall 
be  provided  by  service  providers  established  by  municipalities  or  other  legal  and  natural 
persons  under  contracts  concluded  with  municipalities,  who  are  chosen  by  public  tender.  In 
the absence of a provider of public services, a ward or neighbourhood may, by the decision of 
the municipal council, provide public services itself (article 5 and 8, 9 of the law on local self-
government).  
In general, the concession procedure may be used for the provision of public services in areas 
determined  by  law:  energy,  including  heat  and  electricity  energy,  oil  and  natural  gas 
extraction,  transmission,  distribution,  supply,  railway  lines  and  systems,  water  economy, 
including  water  collection,  pumping,  treatment,  purification  and  distribution;  waste  water, 
including  waste  water  collection,  transportation  and  treatment,  and  sludge  treatment; 
utilisation,  recycling  and  management  of  waste;  infrastructure  of  road  transport;  health  care 
system; 
system;  port  and  barrage 
infrastructure;  educational 
infrastructure; airport infrastructure; public transport infrastructure; tourism objects, facilities 
and other infrastructure; culture, sports, leisure facilities, equipment and other infrastructure19. 

telecommunications 

The need to improve public infrastructure and public services situation and the limitations on 
the main country fiscal indicators set by international treaties (Stability and Growth Pact and 
Maastricht  Treaty)  and  therefore  Government  inability  to  devote  appropriate  financial 
resources  to  meet  those  needs  are  determining  the  PPP  development  in  Lithuania.  PPP 
country process development was started by MOF in the middle of 2005. Today the process is 
mainly spontaneous as there is no long term PPP strategy or action plan, no centralised PPP 
process development and management and supervision or a sufficient clearly developed legal 
system  enabling  effective  application  of  different  PPP  forms.  Public  and  private  sectors 
cooperation possibility is foreseen by the Concession law of 1997 revised in 2003, the public 
procurement law, the Civil code, the Law on Management, Usage and Disposal of State and 
Municipal  Property.  Currently  existing  legal  basis  provides  for  2  PPP  forms  application: 
concession  (the  most  developed  PPP  type,  on  the  grounds  of  Concession  Law  provisions), 
joint activity (joint ventures) - establishing mixed capital enterprises (on the grounds of Law 
on  Management,  Usage  and  Disposal  of  State  and  Municipal  Property  provisions,  contract 
limited to 3  years). PPP projects are initiated and  carried  out  mainly  by  municipalities.  The 

 Laura Martiniello, Italian PPP at a glance, 

18 
http://www.utfp.it/docs/Italian%20PPP%20at%20a%20glance_Martiniello_2008.pdf  
19 

 Law n° I-1510 on concession of 10 September 1996, last amended by Law n° X-749 of 11 July 2006 

100

 
 
 
 
 
 
                                                 
State  is  not  active  in  PPP  field  and  there  is  a  lack  of  strong  political  support  for  the  PPP 
process (the first concession type project was in 2002 - long term lease of Vilnius city heating 
networks).  According  to  the  National  Audit  Office  of  Lithuania  by  September  2007,  45 
concession type projects were initiated by 26 municipalities (above 43% out of total amount) 
and in many cases there was only one participant during tender20. The Lithuanian government 
decided to start implementing a new PPP programme from 2010. 

LUXEMBOURG 

The contracting of public services provision is not developed in Luxembourg21; the majority 
of local public services are supplied by public structures. 

LATVIA 

The contractual delegation of public services to a private company or a local public company 
had been governed by the Law on concessions in force since 2000.  
In 2004, a new law on public procurement was enacted in Latvia with a provision on PPP and 
the adoption of specific legislation is  in progress. PPP projects could also be realised under 
the concession regime (law of 2000). The first PPP projects at local level concern mainly the 
areas of housing, education, heating, street lighting, etc.). At national level, practical projects 
were planned for the transport sector, and energy infrastructure. A  public policy framework 
on  PPP  (“Promotion  Guidelines  of  Latvian  Public  Private  Partnership”)  and  an  action  plan 
(“Action Plan for Implementation of Promotion Guidelines of Latvian PPP for 2006–2009”) 
were adopted in 2005. The first Latvian law on PPP22 came into effect on 1st October 2009 
and  repeals  the  previous  law  on  concessions23.  In  2008  there  were  18  PPP  concluded 
agreements  (the  first  was  concluded  in  2001),  16  in  the  transport  sector  (public  transport 
service concession), 7 for communal services (waste water treatment service concession), 1 in 
education  (art  school  renovation  and  operation),  health  care,  natural  resources,  IT  and 
tourism24.  

THE NETHERLANDS 

Many  PPP  projects  were  initiated  at  national  level  and  a  centre  of  expertise  on  PPP 
(Kenniscentrum publiekprivate samenwerking) was founded in 1999. However, locally, PPPs 
are rare.  

POLAND 
For  the  provision  of  some  public  services,  the  public  authorities  can  entrust  the  activity  to 
private  providers  by  means  of  public  procurement.  There  is  also  a  large  group  of  providers 

 Diana  Vaitiekūniene,  Ministry  of  Finance  of  Lithuania,  PPP  process  development  in  Lithuania,  29 
on 

http://www.ppp.gov.lv/fetch_1856.html. 

examples 

2009, 

some 

also 

See 

20 
January 
http://www.ppp.gov.lv/fetch_1857.html  
21 

 For example, canteens 

22 

23 

24 

 See the text on http://www.ppp.gov.lv/fetch_5917.html 

 Latvijas Republikas Saeimas un Ministru Kabineta Ziņotājs, 2000, No. 4; 2003, No. 2 

 http://www.ppp.gov.lv/fetch_1849.html 

101

 
 
  
 
 
 
 
 
 
                                                 
outside  the  public  sector,  acting  in  the  name  of  the  community  –  non-public  providers  of 
services – including both private undertakings as well as non-profit organisations. 

PPPs, namely the provision of services of general interest by private operators is sanctioned 
by Polish law in the form of the cooperation of private enterprise supported by private capital 
with the public sector at all levels. In Poland it has only just begun to play a role.  
The  legal  basis  for  PPPs  in  Poland  is  constituted,  notably,  by  the  Act  on  public-private 
partnership  of  19  December  2008.  Public  and  private  partners  cooperate  in  various  forms, 
especially in water and sanitation, waste disposal, and most recently in municipal building for 
the communities.  
Agreement  on  public-private  partnership  is  preceded  by  economic  financial  and  legal 
analyses,  to  ensure  the  optimal  financing  of  subsequent  investment,  and  the  realisation  of 
savings, which every PPP project must be demonstrated to secure during its life cycle. 

PORTUGAL 

As  their  competences  are  growing,  local  governments  in  Portugal  no  longer  assume  the 
provision of all public services through in-house services. By the end of the 1990s, some local 
governments  began  contracting  with  external  actors  to  provide  public  services,  including 
water and solid waste, electricity and local transport.  
PPP  projects  and  concession  agreements  were  developed  in  the  mid-1990s.  Today,  the 
concession  agreements  are  regulated  by  the  Public  Contracts  Code25  and  the  public-private 
partnerships are regulated by Decree-law n°86 of 2 April 200326 and are well developed in the 
transport 
and 
telecommunications), and advances in health care (hospital building27), management of water 
and waste. 

(highways,  metro, 

infrastructure, 

transport 

sectors 

tram, 

rail 

Portuguese public administration was also subject to NPM reforms meant to revitalise service 
delivery and to introduce innovative organisation to deliver public services. 
The major dimensions of NPM initiatives were: 

•  autonomisation  and  “corporatisation”  of  public  services  although  remaining  in  the 

• 

public sector (water, health care and cultural services); 
introduction  of  market  mechanisms  in  the  public  services  sector  through  tariffs  and 
free choice of the service provider (health, education, etc.); 

•  “Contractualisation”  of  public  service  obligations  with  the  public  providers  (TV  and 

radio public service, postal services, etc.) 

ROMANIA 

The delegated management of public services developed after 1990 through the concession of 
economic public services to private operators (private or mixed commercial enterprises, some 
arising  from  the  transformation  of  autonomous  public  regii28  or  the  specialised  municipal 

25 

26 

27 

 See Decree Law n° 18 of 29 January 2008 

 See for the health sector Decree Law n° 185 of 20 August 2002 

 http://www.parpublica.pt/pppsanalise.html 

28 
 The Law on local public administration n° 69/1991 gives local authorities the power and autonomy to 
perform the services of local interest. In 1991, on the basis of the Law n° 15 of 7 August 1990, the units of local 

102

 
 
 
 
 
 
 
 
                                                 
services),  most  often  in  areas  of  heating,  waste  management,  urban  public  transport,  street 
cleaning and rarely water29.  
Not-for-profit operators are most often involved in the provision of social services. 
Romanian legislation introduced the contracts of public-private partnership in 2002. The Law 
n°  34/2006  created  a  general  framework  for  the  concession  contracts  (including  PPP  – 
transport infrastructure, tourism, research, etc.).  

SWEDEN 

The main relevant legal regime derives from the Public Procurement Act30 which establishes 
the  rules  for  public  authorities  as  contracting  entities  and  from  the  Company  Law31. 
According  to  the  Local  Government  Act,  before  a  regional  municipality  hands  over 
management  to  a  private  entrepreneur  it  has  to  make  sure  that  it  will  have  the  capacity  to 
control and to be able to follow up on the activities. 

SLOVENIA 

The  manner  of  and  conditions  for  performing  local  public  services  shall  be  defined  by  the 
municipality, unless otherwise provided by law32.  
Public  services  in  Slovenia  are  performed  by  the  special  legal  persons  (public  institution, 
public commercial institutions, public enterprise etc.) established by the state or municipality. 
These  organisations  have  their  own  legal  personality  and  autonomy  in  determining  their 
strategic  plan,  annual  working  programmes,  financial  plans  and  annual  report.  They  are  not 
directly financed from the national or local budget.  
The  law  on  institutions  enabled  the  participation  of  the  private  sector  in  non-commercial 
public  services  (e.g.  education,  culture,  health,  etc.)  by  concession.  The  law  on  economic 
public services allows for the delegated management by concession. Both laws gave only the 
basic  legal  framework.  How  certain  public  services  should  be  “produced”  is  should  by  a 
regulated by each specific law for each type of service.  
The Public-Private Partnership Act 33 was adopted at the end of 2006 to enable and encourage 
mutual help and cooperation between entities from the public and the private sectors to ensure 
economical and efficient provision of public services and other goods or services in the public 
interest34. PPP are carried out in the areas of financing, design and engineering, construction, 

administration were involved in a reorganisation process and became autonomous entities (regii autonome) and 
companies,  and  later  in  a  process  of  privatisation.  By  Government  Decision  n°  597/1992,  the  autonomous 
entities (regii autonome) and the companies established with the capital from the State for the provision of public 
services  have  been  transferred  to  the  competence  of  local  councils.  The  evolution  of  the  public  services 
reorganisation  process  has  revealed  the  deficiencies  of  the  management  by  autonomous  public  entitites  (regii 
autonome)  and  their  inefficiency.  In  1997,  the  Government  Decision  n°  30  started  a  long  process  of 
reorganisation (in some cases, of liquidation) of autonomous entities (regii autonome) into limited companies. 
29 
 For example, Apa Nova SA Bucharest, the concessionaire of the water and waste water public service 
in Bucharest capital city – subsidiary of Veolia Environment – Veolia Water. Since March 2000, 83,69% of its 
capital is owned by Veolia Group, 16,31% by the municipality, 0,0009% others. 
30 

 http://www.konkurrensverket.se/t/Page____490.aspx 

31 

32 

33 

 http://www.sweden.gov.se/sb/d/9171 

 Article 62, Chapter VII Municipal public services - 2005 Act on Local Self-Government 

 www.mf.gov.si/slov/javnar/53646-ZJZP_EN.pdf 

103

 
 
 
 
 
 
                                                                                                                                                         
supervision, organisation and management, maintenance, and provision of public services and 
other activities.  
There are a lot of concession agreements for delivering different public services or services of 
general interest are concluded  at state level 1520 and at the local level: for health care and 
1575 for other services35.  

SLOVAKIA 

At regional and municipal level, including smaller municipalities, all types of service delivery 
methods are used. 
The following categories of local public services delivery arrangements can be distinguished 
for purposes of our research: 

1.  Direct production by the municipality and its employees, 
2.  Municipal net budgetary organisations, 
3.  Municipal firm (firms with more than 50% municipal share included), 
4.  External supplier, 
5.  Combination of four aforementioned arrangements 
6.  Other forms. 

Scale  of  external  forms  (contracting-out)  of  delivery  of  selected  local  public  services  in 
Slovak municipalities (% among all used service delivery methods) 

Service 

2000 

2005 

2005  

49 
27 
16 

Waste 
Cemeteries 
Public 
areas 
Communications  21 
30 
Public lighting 

green 

64 
12 
18 

41 
35 

69 
16 
33 

45 
40 

Slovakia started to use the economic instrument of “Public Private Partnership“ at the national 
level  in  2009,  in  the  sector  of  road  building,  so-called  “speedily  roads“  one  level  lower,  as 
than  highway/motorway.  However,  there  have  been  PPP  arrangements  at  local  and  regional 
level for a long time. 

34 
 Article 2 defines PPP as a relationship involving private investment in public projects and/or public co-
financing of private projects that are in the public interest, and such a relationship is formed between public and 
private partners in connection with the construction, maintenance and operation of public infrastructure or other 
projects that are in the public interest, and in connection with the associated provision of commercial and other 
public services or activities provided in a way and under the conditions applicable to commercial public services, 
or of other activities where their provision is in the public interest, and of other investment of private or private 
and public funds in the construction of structures and facilities that are in part or entirely in the public interest, or 
in activities where their provision is in the public interest. 
35 

 Report on Public-Private partnership in Republic of Slovenia for year 2008 
http://www.mf.gov.si/slov/jav_zas_partnerstvo/Porocilo_jav_zas_part.pdf, page 29, 34. 

104

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
UNITED KINGDOM 

In the current UK system, the direct provision of services by the public sector is smaller than 
in  the  years  1940-1970.  The  public  sector  intervenes  usually  as  an  authority  to  define  and 
regulate the service. SGIs are more provided under a concession or PPP by the private sector, 
though most hospitals and schools (more than 90%) are in public sector management. 
A more profound transformation of the public services sector happened after 1987. A series of 
reforms made the scale of use of market-type-mechanisms much bolder and larger, intensified 
organisational and spatial decentralisation of the management and production of services. A 
law  of  1988  required  communities  to  proceed  to  tender  for  a  list  of  SGIs  (Compulsory 
Competitive  Tendering  CCT)36  on  an  increasing  scale  every  year.  The  1999  Local 
Government  Act  abolished  compulsory  competitive  tendering  (CCT)  for  the  provision  of 
services in favour of a new regime of ‘best value authorities’ (which include, among others, 
local  authorities,  National  Park  authorities,  police  authorities,  fire  authorities,  metropolitan 
county fire and civil defence authorities, waste disposal authorities and metropolitan county 
passenger transport authorities).  
The  Deregulation  and  Contracting  Out  Act  (1994)  defined  the  framework  for  the  future 
evolution  of  the  public  sector  and  public  services,  the  “marketing”  of  some  functions  of 
ministerial  departments  and  to  complete  this  process  for  local  communities37.  The  Act 
removes obstacles to contracting out functions but does not require them to be contracted out. 
It  is  for  individual  ministers  and  statutory  office  holders  to  determine  the  extent  to  which 
services are contracted out38. Excluded from the process of contracting out are such sensitive 
constitutional  functions  as  the  exercise  of  the  judicial  power  of  the  State,  the  regulatory 
authority and the activities undermining fundamental freedoms.  
Tendering continues to form one part of the government’s quest  for value and efficiency in 
the  provision  of  local  authority  services.  In  2005  the  level  of  outsourcing  of  government 
services  (purchase  of  goods  and  services  vs  in-house  provision)  in  United  Kingdom  was 
nearly  80%.  But,  90%  plus  of  (for  instance)  doctors,  nurses,  teachers  and  so  on  are  public 
sector  employees  who  work  in  public  sector  organisations  under  public  sector  management 
and subject to political control of finance. 
In 2003-2004 about one-tenth of UK total capital investments in public services were through 
PPPs39.    PPPs  are  governed  by  Partnership  UK,  under  the  supervision  of  the  Treasury.  The 
Private  Finance  Initiative  PFI,  are  the  most  common  form,  launched  in  1992.  Since  their 
creation  more  than  700  projects  have  been  developed  at  local  level  (health40,  education, 
transport) and more than 200 are expected between 2006- 2010. 

36 
 For a review of the Conservatives’ 1998 Local Government Act, see David Parker, “The 1998 Local 
Government  Act  and  Compulsory  Competitive  Tendering”,  in  Urban  Studies,  vol.  27,  n°  5/October  1990,  pp. 
653-667. Its impact was limited to certain blue-collar functions like refuse collection and the results were very 
mixed as the system was subject to local political bias. 
37 
 Local  Government  Planning  and  Land  Act  (1980)  and  the  Local  Government  Acts  (1988,  1992) 
already forced local authorities to bring to market several services to the public and also the services they receive 
from officials, for example, the collection of garbage and trash, services with professional character, etc. 
38 
the authorisation may be revoke any time(Section 69(5) b). 
39 

 A contractor may be authorized to carry out functions for a maximum of ten years (Section 69(5) a); 

 OECD, Modernising government : the way forward, 2005, p. 141 

40 
 “The  system  [of  PFI]  nevertheless  flourishes  because  it  has  the  key  attraction  of  reducing  the 
government borrowing requirement. A publicly financed alternative which would be very likely to be cheaper is 
in  practice  not  available  because  not  constructed  by  the  government.  The  PFI  becomes  the  dominant  way  of 
financing  hospitals  by  default,  in  the  absence  of  any  public  sector  option.”  David  Hall  (PSIRU),  Services  of 

105

 
 
 
                                                 
In  a  first  phase,  the  NPM  “revolution”  involved  in  the  UK,  in  particular,  extensive 
privatisation, marketisation, and contractualisation of public services. At the same time, new 
coexists  with  old;  the  “new  public  management”  till  adheres  to  many  of  the  values  and 
aspirations of “old public administration”41.  

general interest in Europe – an evidence-based approach, Written submission to European Parliament Committee 
on Economic and Monetary Affairs, 21 February 2001, www. psiru.org 
41 

 Gavin  Drewry,  «  The  United  Kingdom  System  »,  in  K.K.  Tummala  (ed.),  Comparative  Bureaucratic 
Systems, Lexington Books, 2005, p. 55. 

106