COMMISSION STAFF WORKING DOCUMENT Accompanying the document Report from the Commission to the European Parliament and the Council on the functioning of Directive 2014/23/EU on the award of concession contracts and on the impact on the internal market of the exclusions set out in Article 12
Date: 2023-07-28
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: administrative transparency, application of EU law, award of contract, principle of legal certainty, public procurement, service concession, single market, tendering, water management

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.7.2023  SWD(2023) 267 final  COMMISSION STAFF WORKING DOCUMENT   Accompanying the document Report  from the Commission to the European Parliament and the Council  on the functioning of Directive 2014/23/EU on the award of concession contracts and on the impact on the internal market of the exclusions set out in Article 12         {COM(2023) 460 final}  
 
 
TABLE OF CONTENTS 

1. 

INTRODUCTION ....................................................................................................... 3 

2.  METHODOLOGY ...................................................................................................... 4 

3.  OVERVIEW  OF  THE  ECONOMIC  SIGNIFICANCE  OF  THE 

CONCESSION MARKET .......................................................................................... 5 

4.  TRANSPOSITION .................................................................................................... 12 

5.  ASSESSMENT  OF  THE  APPLICATION  OF  THE  CONCESSIONS 

DIRECTIVE .............................................................................................................. 16 

5.1.  Legal certainty ................................................................................................. 17 

5.2.  Application and enforcement - sources of incorrect application of the 

rules for the award of concession contracts ..................................................... 19 

Most frequent sources of incorrect application, including possible 
structural or recurring problems in the application of the 
rules ................................................................................................... 20 

Fraud, corruption, conflict of interest and serious irregularities ............. 23 

5.3.  Providing better access to the concessions market .......................................... 26 

Transparency through publication .............................................................. 27 

Publication of concession contract notices .................................................. 29 

Number of tender offers ................................................................................ 31 

SME participation in concession awards .................................................... 32 

Cross-border  and  Foreign  Participation  in  the  EU  concessions 

market ............................................................................................... 35 

6.  SECTORAL OVERVIEW – KEY SECTORS COVERED ..................................... 41 

7.  SPECIFIC EXCLUSIONS IN THE FIELD OF WATER ........................................ 52 

7.1.  Societal considerations .................................................................................... 53 

7.2.  Economic considerations ................................................................................. 53 

7.3.  Exclusion in the field of water ......................................................................... 53 

7.4.  Key figures about the sector ............................................................................ 59 

7.5.  Private sector participation in the water sector ................................................ 61 

7.6. 

Impact of the Directive on the water sector ..................................................... 65 

Water concessions awarded under the Directive ........................................ 66 

8.  GENERAL CONCLUSIONS ................................................................................... 71 

9.  ANNEXES ................................................................................................................ 73 

1 

 
 
 
9.1.  Methodology and data sources ........................................................................ 73 

  LE Europe and Spark Legal study ..................................................... 73 

  OJ/TED .............................................................................................. 73 

  Orbis BvD (Moody’s Analytics) ....................................................... 74 

  Other data sources ............................................................................. 75 

  The Member States survey ................................................................ 76 

9.2.  Supplementary data ......................................................................................... 76 

REFERENCE LIST ........................................................................................................... 81 

2 

 
 
 
 
 
 
1. 

INTRODUCTION  

A  substantial  part  of  public  capital  in  the  EU  is  allocated  through  public  procurement. 
When public authorities need to  mobilise private capital  and know-how to  complement 
scarce public resources, concessions are a very attractive way of carrying out projects of 
public interest without increasing public debt. By encouraging partnerships between the 
public sector and mostly private companies in key strategic sectors, concession contracts 
therefore underpin an important share of the economic activity in the EU. This is notably 
the case for the development of infrastructure, such as ports, parking garages, toll roads 
or  the  provision  of  services  of  general  economic  interest  such  as  energy,  or  waste 
disposal. 

Directive  2014/23/EU  on  the  award  of  concession  contracts1  (“the  Concessions 
Directive”) was adopted in 2014 in the context of the Single Market Act I which sets out 
twelve levers to boost growth and strengthen confidence in the economy. Considering the 
important  share  of  economic  activity  concessions  could  encompass,  the  Directive  was 
conceived  to  provide  more  legal  certainty  for  concessions.  Together  with  Directive 
2014/24/EU2  on public procurement  and Directive 2014/25/EU3 on the procurement by 
entities  in  a  number  of  utilities  sector,  the  Concessions  Directive  was  part  of  the  2014 
Public procurement package designed to modernize public procurement in the EU4. 

The  objective  of  the  Concessions  Directive  is  therefore  to  provide  more  legal  certainty 
and  better  access  to  the  concessions  markets.  It  aims  at  guaranteeing  transparency, 
fairness  and  legal  certainty  in  the  award  of  concessions  contract.  The  Concessions 
Directive is a principle-based Directive and covers both works and services concessions 
awarded by contracting authorities and entities for contracts with values above a specific 
threshold - currently set at EUR 5 382 000. 

In  line  with  Article  53  of  the  Concessions  Directive,  the  European  Commission 
(Commission) should review the functioning of the Directive and report to the European 
Parliament  (Parliament)  and  the  Council  by  18  April  2021.  The  Commission  shall  also 
assess the economic effects on the internal market of the exclusions set out in Article 12 
taking  into  account  the  specific  structures  of  the  water  sector,  and  report  to  Parliament 
and  Council  by  18  April  2019.  The  delayed  transposition  of  the  Concessions  Directive 
did not allow until now for the collection of the necessary body of evidence needed for 
the Commission’s Report. Considering the short period of time during which all Member 
States  actually  had  transposed  the  Directive,  this  staff  working  document,  which 
accompanies the Commission Report, provides only a first, preliminary assessment of the 
application of the Concessions Directive. 

1  OJ L94,28.03.2014, p.1. 
2  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public 

procurement and repealing Directive 2004/18/EC, OJ L94, 28.03.2014, p.65. 

3  Directive  2014/25/EU  of  the  European  Parliament  and  of  the  Council  of  26  February  2014  on 
procurement  by  entities  operating  in  the  water,  energy,  transport  and  postal  services  sectors  and 
repealing Directive 2004/17/EC, OJ L94, 28.03.2014, p. 243. 

4  The  potential  of  a  legislative  initiative  on  concessions  contracts  for  creating  a  supportive  EU 
framework  for  public-private  partnerships  was  also  singled  out  already  in  the  Commission’s  2009 
Communication  on  Mobilising  private  and  public  investment  for  recovery  and  long  term  structural 
change: developing Public Private Partnerships, COM(2009) 615 final of 19.1.2009. 

3 

 
 
 
 
                                                 
2.  METHODOLOGY 

The report focuses  essentially  on the EU Member States and the 2016 to  2021 period5. 
For  the  sake  of  comparison  with  the  situation  prevailing  before  the  expiry  of 
transposition  period  -  18  April  2016,  Chapter  3  covers  the  2012  to  2019  period  on  the 
basis of the research made by London Economics Europe and Spark Legal6 (see below).  

The Report is based on a body of evidence coming from multiple sources: 

1.  Data  extracted  from  the  Tenders  Electronic  Daily  database  and  presented  in 
Chapter  5  to  Chapter  7.  Data  covers  exclusively  contracts  published  under  the 
Concessions  Directive.  This  scope  is  narrower  and  hence  different  from  the 
approach chosen in the London Economics Europe and Spark Legal (2021) study. 
The  decision  is  motivated  by  certain  data  processing  risks  that  are  inherently 
associated with the text mining methods used in that study.  
Information7 made available by Member States in accordance with Article 45 of the 
Directive, on most frequent causes of incorrect application of the rules for award of 
concessions, possible structural or recurring problems, including possible cases of 
fraud or other illegal behaviour.  

2. 

3. 

The Study on the implementation of the Concessions Directive carried out for the 
Commission  by  London  Economics  Europe  and  Spark  Legal  (2021).  The  study 
assesses  the  functioning  of  the  Concessions  Directive,  mapping  the  existing 
situation  and  provides  an  overview  of  how  the  Concessions  Directive  is  being 
applied. The study covers the period 2012 to end 2019 and the EEA countries. Its 
results  are  mainly  used  in  Chapter  3  of  this  staff  working  document.  In  order  to 
address  the  situation  before  2016,  the  study  followed  a  data  mining  method, 
involving a certain level of data processing risks. Some of the findings of the study 
are  thus  not  directly  comparable  with  the  Commission’s  in-house  data  analysis 
(Chapters  5  and  6).  More  information  about  the  methodological  differences  is 
provided in Annex to this staff working document.  

4.  A survey launched by the Commission services in 2021 to gather information from 
Member States on the organisation of the water sector. All Member States provided 
contributions by September 2021. The replies confirm the complexity of the water 
sector,  with  very  divergent  country-specific  settings  for  the  provision  of  drinking 
water. 

5. 

Positions  expressed  by  stakeholders  during  an  online  Stakeholders’  Event  on  the 
review of the functioning of the Concessions Directive and the assessment of water 
exclusion organised by the Commission on 15 November 2021. The event provided 
all  relevant  stakeholders  the  possibility  to  share  their  experience  with  the 
functioning  of  the  Directive  and  express  their  opinions  on  specific  aspects,  in 

5  Chapter  5.3  Cross-border  and  Foreign  Participation  in  the  EU  concessions  market  focuses  on  EU 

6 

7 

Member States. 
Study  on  the  implementation  of  the  Concessions  Directive  –  Final  Report,  carried  out  for  the 
Commission by London Economics Europe and Spark Legal (2021). 
In  particular  Member  States  reports  of  2018  and  2021  (available  https://ec.europa.eu/growth/single-
market/public-procurement/country-reports_en) and information available on the websites of relevant 
national authorities in charge of public procurement and concessions, competition and anti-corruption. 

4 

 
 
 
                                                 
 
particular  the  exclusion  of  the  water  sector.  The  event  gathered  more  than  200 
participants from different stakeholders’ groups: public authorities awarding works 
or  services  concessions,  companies  active  on  the  concessions  markets,  national 
authorities and other associations. The level of attendance puts a certain limitation 
to the conclusion that can be drawn from discussions, however opinions expressed 
during the event and results of an ad-hoc survey are presented in different sections 
of  this  document.  The  opinions  and  results  of  these  surveys  may  not  be 
representative  of  the  entire  population  of  stakeholders,  nevertheless  they  are 
considered informative for the purposes of this report. 

3.  OVERVIEW OF THE ECONOMIC SIGNIFICANCE OF THE CONCESSION MARKET  

The Commission estimates that the overall value of government procurement in the EU 
was around EUR 2 163 billion in 2018 or 13.6% of EU GDP8, out of which around EUR 
670 billion9 was covered by the three public procurement Directives. The overall value of 
procurement  under  these  three  legal  acts  combined  accounted  for  around  4.2%  of  EU 
GDP.  

According  to  London  Economics  Europe  and  Spark  Legal  (2021),  the  value  of 
concession awarded between 2012 and 2019 is estimated to account for around EUR 238 
billion.  This  period  covers  the  pre-  and  post-Concessions  Directive  publications  (i.e., 
before and after 18 April 2016). The data presented below  captures contracts identified 
by  concession-specific  standard  forms  and  text  search  for  words  that  can  be  associated 
with concessions contracts10.  

Figure 1: Concession award notices by year [number, value in billion EUR] 

8 

Procurement 

Public 
2018, 
(https://ec.europa.eu/docsroom/documents/48156). 
Idem. 

Indicators 

9 
10  More  information  on  the  methodology  applied  is  available  in  annex  A2  of  the  London  Economics 

DG 

GROW, 

May 

17, 

2021 

Europe and Spark Legal (2021) study, page 171. 

5 

 
 
 
 
                                                 
Source: London Economics Europe and Spark Legal (2021), Figure 41. 

Taking  into  account  the  estimated  value  of  concessions  awarded  in  2018  (EUR  80.4 
billion)  and  the  overall  figure  of  public  procurement  notices  published  in  Tenders 
Electronic  Daily  for  the  same  year  (EUR  670  billion),  the  Commission  estimates  that 
concessions  represent  approximately  12%  of  the  overall  public  procurement  market 
covered by all public procurement Directives (the Concessions Directive included). 

Number of concessions award by country  

The yearly average number of concessions for the EEA countries has doubled since April 
2016 and continues to increase. The vast majority of concession contract awards occur in 
France  and  Italy,  which  totals  69%  of  all  concessions  over  the  period.  Together  with 
Spain and Germany, they represent 84% of all concessions, over the 2012 to 2019 period, 
but also after 18 April 2016. 

Comparing  the  pre-Concessions  Directive  and  post-Concessions  Directive  periods (11), 
the largest increases occurred in France, Germany and Spain. Austria, Croatia, Czechia, 
Finland,  Hungary,  Malta  and  Sweden  also  registered  large  increases  in  the  relative 
number of concessions. 

A  closer  examination  of  the  pre-Concessions  Directive  trends  in  France,  Germany  and 
Spain  suggests  that  the  increase  observed  post-Concessions  Directive  could  not  have 
been predicted by the pre-Concessions Directive evolution. Therefore, these three cases 
seem  to  suggest  a  strong  positive  impact  of  the  Concessions  Directive  on  the  use  of 
concessions. In Italy, on the other hand, the increasing trend is already present in the pre-
Concessions Directive period. 

Figure  2  below  presents  the  evolution  of  the  number  of  concessions  by  year  and  by 
country, in terms of concession award notices.  

(11)  Pre-Concessions  Directive  period  is  the  period  from  2012  until  18  April  2016  -  the  expiry  of 
transposition  deadline,  while  post-Concessions  Directive  period  is  the  period  from  18  April  2016  to 
2019. 

6 

 
 
 
                                                 
Figure 2: Concessions by country and year (concession award notices) [number] 

Source: London Economics Europe and Spark Legal (2021), Figure 17, page 57. 

Analysis by type of contract - works and services 

Concessions  can  be  classified  as  being  either  for  “works”  or  “services”.  Works 
concessions  refer  to  public  contracts  that  include  the  execution,  or  both  the  design  and 
execution,  of  building  or  civil  engineering  works.  Service  concessions  means  public 
contracts  having  as  their  object  the  provision  of  services  other  than  the  execution  and 
design of a work. Overall, the number of service concessions has been consistently larger 
than  the  number  of  works  concessions,  both  before  and  after  the  transposition  of  the 
Concessions Directive. 

7 

 
 
 
 
The  number  of  service  concessions  has  increased  considerably  over  time.  Given  how 
sharply this increase occurs, right after the expiry of the transposition period, this may be 
associated  with  the  introduction  of  the  Concessions  Directive  rather  than,  for  example, 
being  the  result  of  a  pre-existing  trend.  The  share  of  service  concessions  in  the  total 
number  of  concession  award  notices  increased  from  66%  in  2012  to  74%  in  2016  and 
92% in 2019. 

The situation of works concessions is very different. The number of works concessions 
have decreased between 2012 and 2019. The decline started already before the expiry of 
the  transposition  period  and  continued  also  afterwards,  which  suggest  that  is  driven  by 
factors independent of the Directive (i.e. overall variation in public contracting for works, 
changes in how contracting authorities report contracts, preference for fewer and higher 
value works contracts). 

Figure 3: Concessions by contract type and year (concession award notices) [number] 

Source: London Economics Europe and Spark Legal (2021), Figure 20, page 62. 

8 

 
 
 
 
Figure 4: Concessions by contract type and year (concession notices) [number] 

Source: LE Europe and Spark Legal (2021), Figure 21, page 62. 

Concessions by value 

The  Concessions  Directive  applies  to  concessions  with  values  equal  or  greater  than  a 
threshold  which  is  currently  set  at  EUR  5  382  000.  According  to  Article  8(2)  of  the 
Concessions  Directive,  the  value  of  the  concession  shall  be  calculated  as  the  total 
turnover of the concessionaire  generated over the entire duration of the contract, net  of 
VAT. Each concession shall have a value. 

The exact contract value of a concession appears nevertheless very difficult to determine 
from the information available in Tenders Electronic Daily. In the contract award notices, 
the  majority  of  concessions  have  low  values.  While  these  values  might  be  correct  for 
some  concessions,  manual  checks  indicate  that  most  cases  seem  to  represent  symbolic 
values, unit prices or monthly/yearly fees.  

Figure 5 below displays the share of all concession awards for different sizes of contract 
values for the period 2012 to 2019. The majority of the number of identified concessions 
(60.4%)  are  below  the  threshold.  The  remaining  concessions  have  a  value  between  the 
threshold value and EUR 100 million (34.8%) and around 5% of concessions have values 
over EU 100 million. London Economics Europe and Spark Legal nevertheless estimate 
that  the  percentage  of  concessions  with  reported  values  below  the  threshold  has 
decreased  over  the  time,  and  especially  after  2016.  In  the  period  pre-Concessions 
Directive  period  Directive  this  percentage  was  at  69%  while  in  the  post-Concessions 
Directive period the respective percentage was 57%. 

9 

 
 
 
 
 
Figure 5: Concession values 2012-2019 - categories (concession award notices) [number] 

Source: London Economics Europe and Spark Legal (2021), Figure 43, page 90 

The  incorrect  reporting  of  concession  contract  values  in  the  Tender  Electronic  Daily 
database  is  a  systemic  problem  linked  to  publication  and  transparency.  This  limits  the 
conclusion  that  can  be  drawn  from  the  data  However,  to  avoid  misrepresentations, 
concessions  with  values  below  the  threshold  have  been  removed  and  the  analysis  of 
values was performed only for concessions above the threshold. 

Figure  612  below  presents  the  distribution  of  above-threshold  concession  contract 
numbers and values for each of EEA countries in the post-concessions Directive period 
and in the post-Concessions Directive period. 

In almost all countries, the median value is lower than the average value in both the pre- 
and post-Concessions Directive period. This indicates that a large number of concessions 
have a relatively low value and the average is driven by a few high values. However, for 
some  Member  States,  such  as  Ireland,  Latvia,  Netherlands,  Portugal,  Slovakia  and 
Sweden which display very large average values, this is likely driven by the low number 
of observations13. 

The  possible  correlation  between  the  Concessions  Directive  and  the  size  of  contract 
values  is  not  consistent  across  countries.  Post-Concessions  Directive,  in  12  countries 
median  values  decreased  and  in  nine  countries  increased.  Similarly,  ten  countries 
experienced  a  decrease  and  11  countries  an  increase  of  the  average  value,  in  the  same 
period. The remaining nine countries had no above-threshold concessions in at least one 
of the pre- or post-Concessions Directive periods. 

12  Cells in grey indicate that the figures are based on less than 10 observations. 
13   For example, Sweden’s large average value in the pre-Directive period was due to a concession for the 
design, manufacturing, operation and maintenance of offshore wind turbine generators. Slovakia’s large 
average  value  after  the  Directive  was  due  to  a  concession  for  the  design,  construction,  financing, 
operation and maintenance of motorway sections. Latvia’s large average value after the Directive was 
due to a concession for waste management in its capital city. 

10 

 
 
 
 
                                                 
After the expiry of the transposition deadline,  there were large increases in the average 
value of concessions in Belgium and France, and large decreases in the Italy and Spain. 
These changes were predominantly driven by changes in the number of contracts worth 
over EUR 100 million. 

Figure  6  below  indicates that  France  was  the  main  driver  of  the  increase  in  the  average 
contract value after the transposition deadline. France saw a significant increase in both 
the number of post-Concessions Directive above-threshold concessions and the average 
value of those concessions. France’s share of the total contract value across all EU and 
EEA  countries  rose  from  27%  pre-Concessions  Directive  period  to  82%  post-
Concessions Directive.  

Figure 6: Total number, total value, median value and average value for above-threshold concessions 
in EEA countries, pre-and post-Concessions Directive (concession contract award notices) 

Source: London Economics Europe and Spark Legal (2021), Figure 48, page 97. 

11 

PrePostPrePostPrePostPrePostCountry##€, millions€, millions€, millions€, millions€, millions€, millionsFrance22198810,712159,13815.320.848.5161.1Italy1402669,16110,66011.011.265.440.1Germany281646355,40417.217.222.733.0Spain381408,2967,20114.018.3218.351.4Romania163752999915.218.233.127.0Netherlands6236541,02093.321.6108.944.4Belgium101719056912.915.019.033.5Norway312351,05312.719.411.687.8Finland2113927519.512.019.525.0Croatia1102932628.522.928.532.6Czechia---10---367---12.4---36.7Denmark17101,45790543.320.985.790.5Hungary---9---143---12.8---15.8Ireland592,2142,204415.0270.0442.8244.9Portugal593,51427816.19.3702.730.9Sweden18550383550.018.0550.047.9Poland7729885323.931.842.6121.9Slovenia1663118015.213.119.413.3Estonia15304930.09.330.09.8Austria131517615.012.015.058.6Greece4325712166.046.364.240.5Bulgaria22481324.16.324.16.3Malta---2---38---18.8---18.8Slovakia32991,96339.9981.633.0981.6Latvia---1---676---676.1---676.1Cyprus------------------------Lithuania------------------------Luxembourg------------------------Iceland------------------------Liechtenstein------------------------Total5271,75439,071194,89374.1111.1MedianAverageTotal valueNumber 
 
 
 
It  is  worth  noting  that  following  18  April  2016  there  was  a  substantial  increase  of 
contracts above EUR 100 million and EUR 1 billion. Most concessions worth over EUR 
1 billion in the whole of the EU were awarded in France: 39 of 50 over the entire time 
period. 20 of the concessions worth over EUR 1 billion related to the electricity sector, 
while the majority of the others related to telecommunications networks, heating and gas 
distribution,  public  transport,  and  transport  infrastructure,  such  as  roads.  21  of  the  50 
concessions  worth  over  EUR  1  billion  were  awarded  without  prior  publication  of  a 
contract notice. 

4.  TRANSPOSITION  

Under  Article  51,  Member  States  had  to  transpose  the  Concessions  Directive  into 
national  law  by  18  April  2016.  At  the  expiry  of  the  transposition  period,  only  six 
Member  States  had  communicated  all  the  necessary  measures  to  the  Commission.  To 
date,  all  EU  Member  States  have  notified  the  Commission  having  adopted  all  the 
measures  required  to  implement  the  obligations  of  the  Concessions  Directive  in  their 
respective domestic laws.  

Entry into force of national legislation transposing the Concessions Directive 

EU 
Member State 

Date of 
transposition 

EU  
Member State 

Date of 
transposition  

Austria 

Belgium 

Bulgaria 

Croatia 

Cyprus 

Czechia 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

05/10/2018 

30/06/2017 

01/01/2018 

22/07/2017 

17/02/2017 

01/10/2016 

01/01/2016 

01/09/2017 

01/01/2017 

01/04/2016 

18/04/2016 

08/08/2016 

01/11/2015 

18/05/2017 

Italy  

Latvia 

Lithuania 

Luxembourg 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

19/04/2016 

16/05/2017 

01/01/2018 

09/07/2018 

28/10/2016 

01/07/2016 

13/12/2016 

01/01/2018 

26/05/2016 

18/04/2016 

12/02/2019 

26/02/2020 

01/01/2017 

Source: London Economics Europe and Spark Legal (2021) 

An  initial  assessment  of  the  national  transposition  measures  identified  that  only  ten 
Member  States  (Austria,  Belgium,  Croatia,  Denmark,  Ireland,  France,  Luxembourg, 
Latvia,  Malta  and  Slovakia)  were  in  full  conformity  with  all  the  obligations  of  the 
Concessions  Directive.  The  Commission  therefore  launched  infringement  proceedings 

12 

 
 
 
 
 
against the remaining 17 Member States in January 2019, October 2019, June 2021 and 
December  2021.  The  proceedings  against  Cyprus,  Portugal,  and  Romania  have  been 
formally closed following the notification of amendments by those Member States. The 
remaining  proceedings  are  still  ongoing  and  essentially  concern  elements  which  are 
important for the proper application of the Concessions Directive, such as its scope, the 
criteria for exclusion of economic operators and the modification of contracts. Some of 
the  infringement  procedures  concern  both  the  Concessions  Directive  and  the  other  two 
public  procurement  directives  and  should  not  be  formally  closed  before  all  pending 
issues  (regardless  of  the  concerned  Directive)  are  addressed.  In  this  respect,  it  may 
appear that some Member States have ongoing infringements  even if, strictly speaking, 
issues related to the transposition of the Concession Directive may have been solved in 
the meantime. 

The  Concessions  Directive  was  transposed  by  means  of  new  acts  (i.e.  in  Czechia, 
Denmark,  Estonia,  France,  Greece,  Croatia,  Hungary,  Ireland,  Malta  Poland,  Portugal, 
Romania  Spain,  Slovakia  and  Sweden),  by  amendments  to  existing  legislation  (i.e.  in 
Germany,  Lithuania,  Latvia  and  the  Netherlands)  or  a  combination  of  the  two  (i.e.  in 
Austria, Belgium, Bulgaria, Finland, Italy and Luxembourg).  

In  most  Member  States,  the  legal  acts  transposing  the  Concessions  Directive  were 
adopted  by  the  national  parliaments.  However,  in  Denmark,  Ireland  and  Portugal  the 
transposition  was  conducted  through  governmental  regulations  while  in  Belgium  and 
Romania the transposition was conducted by a combination of both. 

In  addition  to  measures  adopted  at  national  level,  four  Member  States  (i.e.  Austria, 
Belgium, Spain and Croatia) have also adopted additional regional measures. A summary 
of the scope of the regional measures is provided below: 

Regional transposition measures 

Member State  Summary of measures at regional level 

Austria 

Belgium 

Spain 

Croatia 

Nine regional laws were introduced, one for each federal states 
in  Austria.    However,  thy  can  only  regulate  the  protection, 
control and/or review proceedings. 

All  three  regions  have  used  this  right  and  introduced  regional 
measures  to  specify  certain  provisions,  such  rules  on  soil 
management and remediation in the Brussels Capital Region. 

Some regions have adopted regional legislation, such as Aragon 
-  for  urgent  measures  for  the  speeding  up,  rationalisation  and 
transparency  of  small-scale  public  sector  contracts  and 
Extremadura for socially responsible public procurement. 

The  local  and  regional  self-government  units  are  obliged  to 
prescribe  who  has  the  competence  to  make  the  decision  to 
award/annul  concessions,  to  alter  such  decisions,  and  to 
terminate the concessions contract. 

Source: London Economics Europe and Spark Legal (2021), based on Table 1, page 12. 

13 

 
 
 
In  a  number  of  Member  states,  national  transposing  measures  have  gone  beyond  the 
provisions of the Concessions Directive. This is for instance the case for the thresholds 
above  which  the  Concessions  Directive  applies  (Article  8).  Eight  Member  States  apply 
some  or  all  the  provisions  of  the  Concessions  Directive  to  concessions  below  the  EU 
threshold.  Consequently,  requirements  and  administrative  procedures  set  out  in  the 
Directive  would  apply  to  concessions  presenting  a  lower  level  of  cross-border  interest 
under EU law. This is also the case for the obligation for contracting authorities/entities 
to inform a tenderer of the characteristics and relative advantages of the tender selected, 
as quickly as possible, and in any case within 15 days from receipt of a written request. 
Three  Member  States  require  the  information  on  the  characteristics  and  relative 
advantages  of  the  tender  selected  to  be  provided,  as  a  rule,  with  the  contract  award 
decision,  and  not  only  upon  request  of  the  tenderer.  One  Member  State  has  also 
transposed  the  provision  on  award  criteria  in  a  more  stringent  way  since  the  national 
legislation  requires  providing  information  within  five  working  days.  Such  transposition 
in  national  law  is  not  contrary  to  the  Concessions  Directive  but  may  result  in 
administrative burden for the contracting authority.  

Article  12  excludes  the  water  sector  from  the  scope  of  the  Directive.  When 
transposing the Concessions Directive, 21 Member States have excluded the water sector 
from the scope of the national measures transposing the Concessions Directive. Romania, 
Poland  and  Czechia  decided  to  apply  the  Directive  to  the  water  sector,  while  France, 
Spain and Bulgaria apply it only partially.  

National Guidance 

In order to support the application of the Concessions Directive and institutional capacity 
building, national authorities in nine Member States (Belgium, Bulgaria, Estonia, Greece, 
Finland,  Croatia,  Lithuania,  Sweden  and  Slovenia)  have  issued  concession  specific 
guidance14.  Other  Member  States  (Austria,  Cyprus,  Denmark,  France,  the  Netherlands, 
Romania  and  Slovakia)  have  issued  more  horizontal  guidance,  covering  public 
procurement and public private partnerships (PPPs) which may include also concessions. 
The  guidance 
(e.g.  guidelines,  explanatory  documents, 
instructions),  and  can  be  binding  or  non-binding.  In  several  instances  the  guidance  is 
extremely detailed (e.g. providing templates, good-practice examples, explanations for a 
wide range of stakeholders, etc.). 

takes  different 

forms 

While  some  Member  States  provide  simplified  versions  of  public  procurement  acts, 
others provide additional information, such as explanatory notes and best practices. Some 
elements that stand out positively in the comparative analysis are: 

 

 

 

a  clear  distinction  between  concessions  and  PPPs  (or  other  public  procurements) 
and  guidance  specific  to  concessions  can  help  in  the  (correct)  application  of  the 
Concessions Directive; 

guidelines  addressing  the  questions  and  point  of  view  from  both  national 
authorities and economic operators; 

templates  and  best  practices  cases  that  provide  a  correct  interpretation  of  the 
regulation/guidelines and illustrate their application; 

14  At EU level, no concession-specific guidance was issued so far. 

14 

 
 
 
                                                 
 

 

published responses to specific questions posed by public authorities (or economic 
operators), which might clarify issues that multiple stakeholders are facing; 

provision  of  multiple  documents  in  different  formats  (and  languages)  makes  the 
process  more  accessible  and  clarifies  certain  aspects  by  approaching  topics  from 
different angles. 

The summary of the guidelines is provided below: 

National Guidelines 

Member 
State 

Description of guidelines 

Belgium 

Bulgaria 

Croatia 

Estonia 

The guidelines consist of binding ministerial circulars (e.g. setting out payment 
deadlines  and  penalties),  non-binding  manuals  for  federal  authorities,  federal 
agents or businesses, explaining a specific part of the concession process (e.g. 
e-Tendering),  and  guidelines/best  practices  assisting  stakeholders  in  the 
concession  process  (both  public  authorities  and  private  stakeholders),  with  a 
specific goal (e.g. fight against social dumping).  

in  methodological 

The  guidelines  consist 
instructions  –  both  general 
instructions  and  instructions  in  response  to  queries  from  grantors,  which  are 
made  publicly  available15  .  It  also  include  suggestions  (good  practices)  to  be 
implemented,  such  as  joint  concessions  with  several  concessionaires  for  big 
infrastructural  projects,  concessions  where  the  investment  comes  both  from 
private and EU funding and joint concessions with the participation of the State 
and one or more municipalities. 

There  are  two  (legally  binding)  acts  clarifying  the  rules  on  concessions:  the 
Regulation on Standard Forms and their Publication16 governs the lay-out and 
content  of  standard  forms  and  their  publication  and  the  Ordinance  on  the 
Register of Concessions17 (e.g. the form and keeping of the Register, subjects 
registered, submission of documentation for entry, payment and registration of 
the concession fee, etc.) 

Examples  of  guidelines  for  concessions  include  the  support  material  for  the 
assignment  of  CPV  codes  for  social  and  special  services  and  ordinary 
services18,  and  video  guidelines  about  the  legal  amendments  made  by  the 
Public  Procurement  Act  (transposing  the  Concessions  Directive)  available  on 
the  website  of  the  Ministry  of  Finance19.  The  guidelines  are  directed  at 
contracting  authorities  as  well  as  economic  operators.  Moreover,  the  City  of 

15   https://nkr.government.bg/Information/GetPage/7efda5ef-2f02-4c72-bd29-95f424e9f9f6.  
16   Uredba o standardnim obrascima i njihovoj objavi (Narodne novine br. 100/17), Regulation on Standard Forms and 

their Publication (Official Gazette no. 100/17), 19 October 2017.  

17   Pravilnik  o  registru  koncesija  (Narodne  novine  br.  1/18),  Ordinance  on  the  Register  of  Concessions  (Official 

Gazette no. 1/18), 15 January 2018.  

18   Available 

at: 

https://www.rahandusministeerium.ee/et/eesmargidtegevused/riigihangete-poliitika/kasulik-

teave/riigihangete-juhised - last accessed on 1 December 2020. 

19https://www.youtube.com/watch?v=Szp9XmJOXXo&list=PLyJxFhmTNvV9g2pv1Qas9H0xwOYnNWSF2&index=
https://www.rahandusministeerium.ee/et/eesmargidtegevused/riigihangete-poliitika/kasulik-

and 
7 
teave/riigihangete-juhised 

 - last accessed on 1 December 2020. 

15 

 
 
 
                                                 
Tallinn  has  provided  model  documents  which  include  samples  for  public 
procurement documents and contracts, including for concession contracts20. 

Finland 

The government issued a guidebook to public procurements in which a chapter 
is dedicated to legal requirements for concessions21. 

Greece 

Guidance  includes  explanatory  documents  and  instructions  (non-binding 
documents)  on  various  matters  on  the  application  of  law  on  concessions, 
templates relating to every stage of the award procedure.  

Lithuania 

Best  practices  are  provided  on  the  website  of  PPP  Lithuania22.  The  online 
webpage  developed  by  PPP  Lithuania  lists  36  public-private  partnership 
projects, of which half were implemented under concession agreements. Most 
of  these  projects  concern  the  sector  of  tourism  (e.g.  camping)  and  its 
infrastructure,  active  leisure  activities  and  sports  (e.g.  various  sports  centres). 
Furthermore,  methodological  documents  (e.g.  a  template)  are  provided  for 
concession agreement23 and the evaluation of tenderers. 

Slovenia 

Guidance  on  specific  rules  for  awarding  concessions  in  certain  sectors  (e.g. 
social assistance24 and services for the labour market25). 

Sweden  Online, non-binding guidance on how to procure concessions26. 

Source: LE Europe and Spark Legal (2021), based on Table 6, page 112 

5.  ASSESSMENT OF THE APPLICATION OF THE CONCESSIONS DIRECTIVE  

Prior to 18 April 2016 – the deadline for transposition by Member States, the award of 
works  concessions  was  partly  covered  by  a  limited  number  of  provisions  in  the  EU 
public  procurement  legislation  (e.g.  works  concessions  awarded  by  contracting  entities 
were  not  covered).  Service  concessions  were  only  covered  by  the  general  principles  of 
the TFEU as interpreted by the EU courts.  

This  loophole  was  considered  to  distort  the  internal  market  and  in  particular  limited 
access by European businesses, especially SMEs, to the economic opportunities offered 
by  concessions.  The  lack  of  clear  and  adequate  definitions  of  concession  contracts  and 
the broad character of the obligations arising from the Treaty were further considered to 
cause significant economic inefficiencies.  

The  Concessions  Directive  therefore  aims  at  reducing  the  uncertainty  surrounding  the 
award of concessions, by providing for certainty on the legal framework and improving 
access  to  the  concessions  markets  by  increasing  transparency  and  fairness  in  award 
procedures. This Chapter presents the extent to which these two key objectives have been 
pursued and achieved since 18 April 2016 - the transposition deadline. 

20   Available at: https://www.tallinn.ee/est/Kontsessioon - last accessed on 3 December 2020.  
21  Valtion  hankintakäsikirja  2017,  Publication  of 

the  ministry  of 

finance  29/2017,  accessible  on 

<https://vm.fi/documents/10623/4040240/Valtion+hankintak%C3%A4sikirja+2017/868b80fa-c2de-4328-ae93-
36b17968f780/Valtion+hankintak%C3%A4sikirja+2017.pdf?version=1.0> 201-203. 

22   https://www.ppplietuva.lt/lt/valstybes-strateginiu-tikslu-ir-finansu-valdymo-tobulinimas/gerosios-praktikos.  
23 

https://www.ppplietuva.lt/en/publications/annex-no-8-to-the-recommendations-partnership-concession-agreement-
services 

24   http://www.pisrs.si/Pis.web/pregledPredpisa?id=PRAV5639.  
25   http://www.pisrs.si/Pis.web/pregledPredpisa?id=PRAV10456.  
26   https://beta.upphandlingsmyndigheten.se/regler-och-lagstiftning/luk/.  

16 

 
 
 
                                                 
5.1.  Legal certainty  

The Concessions Directive intends to provide legal certainty in two ways: by providing 
for  more  precise  definitions  and  by  providing  for  rules  incorporating  Treaty  principles 
relevant to the award procedure.  

One of the main take-away from the Stakeholders’ Event was that the Directive provides 
a  good  balance  between  legal  certainty  and  flexibility  (e.g.  in  terms  of  choice  of 
procedure), however more flexibility may be needed with regards to concession contract 
modifications  as  concessions  are  generally  long  term.  Legal  certainty,  in  particular,  in 
terms  of  transparency,  was  indicated  as  one  of  the  main  benefits  brought  by  the 
Directive. 

The definition of “concessions” 

The Concessions Directive defines concessions as written contracts between one or more 
contracting  authorities  or  contracting  entities  and  one  or  more  economic  operators 
(concessionaire),  where  the  latter  is  entrusted  with  the  execution  of  works  or  the 
provision  and  management  of  services  and  is  remunerated  by  being  given  the  right  to 
exploit  the  respective  works  or  service,  or  by  being  given  this  right  together  with 
payment27. 

Notwithstanding  the  clarification  provided  in  the  Concessions  Directive,  discrepancies 
regarding the meaning and use of the notion of concessions remain significant in Member 
States and the term concession within the meaning of the Directive is used for sectors and 
issues  that  go  beyond  the  Concessions  Directive.  For  example,  in  the  majority  of 
Member  States,  national  legislation  other  than  the  transposing  one  use  the  term 
“concession”  to  refer  to  other  legal  concepts,  such  as  authorisations,  licenses  or  other 
public contracts. In several Member States the use of the term concessions also relates to 
the concessions that are excluded from the scope of the Concessions Directive. In a few 
Member States a different term than concessions is used in non-transposing legislation to 
designate concessions in the sense of the Concessions Directive.  

The definitions and interpretation was  also identified during the Stakeholders’ Event as 
one of the main obstacles when using the Directive. 

It cannot be excluded that these discrepancies lead to higher costs as economic operators 
participating  in  cross-border  concessions  cannot  rely  on  one  specific  meaning  of 
concessions. It may also lead to time-consuming misunderstandings on the side of both 

27   This is to be distinguish from “authorisations or licences” which involve a public authority establishing 
conditions  for  a  contractor  to  carry  out  a  certain  operation.  Under  a  concession  contract,  a 
concessionaire in  executing the  works or services  must  meet specific legally binding and enforceable 
requirements as defined by the contracting authority. This stands in contrast with the conditions to carry 
out an operation which are set for the granting or an authorisation or licence. Whereas an authorisation 
or licence provides a contractor with the right to exploit that authorisation or licence, a concessionaire 
is under an obligation. Moreover, for authorisations or licences, it is the economic operator requesting 
the  contract  to  be  granted,  whereas  it  is  the  contracting  authority  initiating  the  awarding  of  a 
concession.  Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12  December 
2006  on  services  in  the  internal  market  (OJ  L  376,  27.12.2006,  p.  36)  applies  to  authorisations  and 
licences. 

17 

 
 
 
                                                 
contracting  authorities/entities  and  economic  operators  about  not  only  the  meaning  and 
understanding of the applicable definition but also about what legislation applies. 

The definition of “operating risk” 

The Concessions Directive defines  the notion of  “operating risk.” Concession contracts 
always involve the transfer to the concessionaire of an operating risk of economic nature. 
This  means  that  the  concessionaire  may  not  recoup  investments  made  and  the  costs 
incurred in operating the works or services awarded under normal operating conditions, 
even if a part of the risk remains with the contracting authority or contracting entity. 

The presence of an operating risk is what differentiates concession contracts from other 
types of public contracts. Therefore, the transposition of this notion is key to ensure the 
correct implementation of the Concessions Directive. Yet only four Member States have 
transposed  the  concept  exactly  as  set  out  in  the  Concessions  Directive.  Over  twenty 
Member  States  transposed  the  concept  of  operational  risk  through  slightly  different 
wording than the one provided in the Directive, and two Member States did not address 
the  operational  risk  at  all  in  national  transposing  legislation.  At  this  stage  it  is  not 
possible to say whether these discrepancies are of relevance. Different interpretations of 
operating risk could mean that public procurement for the same type of work or service 
provisions  will  be  treated  differently  among  Member  States  and  in  some  not  even  be 
subject to the Concessions Directive. 

Procedural guarantees aiming to ensure a fair and transparent award procedure 

The  Concessions  Directive  has  codified  a  series  of  procedural  guarantees  aiming  at 
ensuring  a  fair  and  transparent  concessions  award  procedure.  For  example,  there  are 
obligations  relating  to  the  selection  and  award  criteria  to  be  used  by  contracting 
authorities/entities  when  awarding  concessions,  there  are  rules  on  publication  to  ensure 
transparency and fairness, minimum deadlines for the submission of tenders and for the 
publication  of  contract  award  notices  in  procedures  for  award  of  concessions,  and  the 
concessions  Directive  provides  for  an  extension  of  the  scope  of  application  of  the 
Remedies  Directives28  to  all  concession  contracts  above  the  threshold  in  order  to 
guarantee the possibility for challenging the award decision in court and provide minimal 
judicial standards which have to be observed by contracting authorities or entities. 

main 

During the stakeholder event, transparency, was identified by the participants as one of 
Directive.  
brought 
the 
At  the  same  occasion  it  was  expressed  the  view  that  access  to  remedies  enhances 
objectivity,  transparency,  equal  treatment  of  tenderers,  by  the  contracting  authorities 
which act knowing that they can be controlled by a judge. 

benefits 

the 

by 

Provisions on contract modification  

The  Directive  includes  specific  provisions  on  concession  contract  modification  which 
incorporates the basic solutions developed in the case law and provide practical solutions 

18 

 
 
 
                                                 
 
for dealing with unforeseen circumstances requiring a concession to be modified during 
its term. 

Contract  modifications  are  nevertheless  considered  a  sensitive  issue,  and  in  particular 
contract  modifications  without  a  new  opening  of  competition  are  a  concern  from  the 
perspective  of  effective  competition  and  transparency.  The  Concessions  Directive 
provides detailed rules clarifying the conditions in which contract modifications without 
a new opening of competition can take place. Austria and Slovakia provide guidance on 
contract  modifications  and  eleven  Member  States  (Austria,  Bulgaria,  Croatia,  Czechia, 
Hungary,  Italy,  Latvia,  Portugal,  Romania,  Slovakia  and  Spain)  have  introduced  an 
express requirement that any modifications must be approved by a government authority 
other than the procuring authority responsible for the initial contract. 

Despite such measures,  modification of contracts during their term, including wrongful 
extension of contracts and amendments without a new call for competition are  reported 
as a source of wrong application of the rules. 

Distinguishing concessions from other public private partnerships 

The Concessions Directive also clarifies the case in which a contract concluded between 
a contracting authority and an economic operator is not subject to the application of the 
concession award rules. This has been guided by the principles set out in the case law of 
the  European  Court  of  Justice.  This  is  relevant  as  there  is  no  EU  law  defining  and 
regulating the concept of public private partnership. 

In practice, the relationship between public private partnerships and concessions is very 
close, as the latter are usually considered a particular form of such a partnership. Public 
private partnerships in many cases constitute either public contracts or concessions.  

Nonetheless,  the  following  non-legislative  document  have  been  published  on  public 
private  partnerships:  the  Green  Paper  on  public-private  partnerships  (2004)  defines 
public private partnerships as “forms of cooperation between public authorities and the 
world  of  business  which  aim  to  ensure  the  funding,  construction,  renovation, 
management or maintenance of an infrastructure or the provision of a service.”  

Member  States  have  taken  different  approaches  in  relation  to  legislating  public  private 
partnerships. Although some of the national legal frameworks or rules on public private 
partnerships  specify  how  such  partnerships  relate  to  the  rules  on  concessions,  in  other 
Member  States  there  are  diverging  definitions  of  the  term  public  private  partners  at 
national level and/or less clarity as to how legislation on this topic refers to the definition 
of, and rules on, concessions. 

5.2.  Application and enforcement - sources of incorrect application of 

the rules for the award of concession contracts 

In the context of monitoring and transparency requirements29, the Commission received 
26 reports in 2018 (all Member States except Austria and the UK) and the same number 

29  Article 45 of the Directive 2014/23/EU as well as under Articles 83 and 85 of Directive 2014/24/EU, 

and Articles 99 and 101 of Directive 2014/25/EU 

19 

 
 
 
                                                 
in 2021 (all Member States except Portugal)30. Due to the delayed transposition, Member 
States’  reports  of  2018  cover  only  year  2017  and  the  reports  of  2021  cover  the  period 
2018 to 2020. Overall, the reports covered the period between the 1 January 2017 and 31 
December 2020. 

With the exception of Bulgaria and, to a certain extent, Italy which reported separately on 
issues  specific  to  concessions,  the  vast  majority  of  Member  States’  reports  do  not 
differentiate  between  the  three  EU  procurement  Directives,  therefore  the  information 
reflects  horizontal  procurement  aspects  without  linking  it  to  a  specific  type  of 
procurement (public contract or concession). Most of the Member States have transposed 
the  three  Directives  into  one  single  law  and  have  appointed  one  Public  Procurement 
Monitoring  Authority.  Moreover,  concessions  represent  a  very  small  proportion  of  the 
number  of  public  procurement  procedures.  Nevertheless,  whenever  possible,  specific 
examples  on  concessions  are  provided.  Information  in  the  Member  States  Reports  was 
complemented  with  a  desk  research  of  the  websites  of  relevant  national  authorities  in 
charge of different aspects of public procurement and concessions. This section is based 
on the reports complemented by the desk research. 

By  analysing the above-mentioned information made publicly available by the Member 
States it  is  evident that all Member States have  made significant  efforts  to  put  in  place 
monitoring  authorities  and  structures  to  ensure  an  efficient  application  of  the  rules  for 
award of concessions. There are still some aspects  which appear to  be problematic and 
which  cause  incorrect  application  and  sometimes  illegal  behaviour.  The  two  sections 
below  depict  those  issues.  Throughout  these  sections  whenever  examples  of  Member 
States are enumerated in relation to a specific issue, it is to be noted that lists are by no 
means exhaustive. 

Most  frequent  sources  of  incorrect  application,  including  possible  structural  or 
recurring problems in the application of the rules 

A.  This  section  presents  the  most  common  legal  provisions  indicated  as  problematic 
by  contracting  authorities  and  entities  when  concretely  applying  the  rules  and  matters 
which requested clarification or guidance from the national or regional authorities. 

Concerning  the  award  criteria,  contracting  authorities  and  entities  appear  to  find  it 
difficult  to  formulate  proportionate,  proper  and  meaningful  quality  criteria,  including 
those involving strategic public procurement (green, socially responsible and innovative) 
and establishing a relevant link with the subject matter of the procurement (e.g. Bulgaria, 
Germany, Croatia, Cyprus, France, Italy, Latvia, Spain31 and Sweden). The Commission 
considers green public procurement as an important instrument to stimulate the demand 
for  net-zero  products  at  large  scale  as  recently  reflected  in  the  Green  Deal  Industrial 
Plan32. 

30  The  original  reports  as  submitted  by  Member  States  are  available  at  the  following  address: 

https://ec.europa.eu/growth/single-market/public-procurement/country-reports_en. 

31Spain reports that levels of non-compliance lie between 33.89 % and 26.58 % were detected. 
(32)  Communication from the Commission to the European Parliament, the European Council, the Council, 
the  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  -  A  Green  Deal  Industrial 
Plan for the Net-Zero Age, COM(2023) 62 final, 1.2.2023. 

20 

 
 
 
                                                 
Further to that, Italy reports in relation to concessions that award criteria are sometimes 
not objective (e.g. precedence in the tendering for who has been residing in the region for 
the two preceding years). Similarly, the interpretation and verification at tender stage of 
the  exclusion  grounds  was  reported  as  being  difficult  in  Belgium,  France,  Latvia  and 
Italy. 

Almost  half  of  Member  States  indicated  receiving  clarification  questions  regarding  the 
possibility  to  use  the  negotiated  procedure  without  publication  (e.g.  under  which 
conditions  this  procedure  can  be  used33  without  violating  the  law).  Additionally,  many 
Member  States  indicated  that  the  procedure  was  wrongfully  applied  (Austria,  Croatia, 
Cyprus,  Finland,  Greece,  France,  Italy34,  Luxembourg,  Lithuania,  Spain  and  Sweden). 
Romania  reported  excessive  use  of  negotiated  procedures  without  prior  publication, 
which is not provided with a sufficient description in the legislation and good practices 
guidelines. 

Difficulties appear to exist also in respect of the delineation of the contract type, notably 
the  distinction  between  public  contract  and  concession  (France,  Malta,  Poland  and  the 
Netherlands).  Poland  reported  specific  issues  on  the  relationship  between  public 
procurement rules and concession rules in the context of admissibility: the joint award of 
concessions  by  several  contracting  authorities,  the  modification  of  the  concession 
contract  and the admissibility of new  contracting authorities to  join the contract  during 
the term of the concession contract, and the conduct of a procedure for the award of the 
concession  by  a  proxy.  Italy  reports  as  specific  to  concessions,  the  situation  of  mixed 
concessions  via  third  party  management.  The  Italian  authorities  have  decided  that  a 
concessionaire  can  grant  80%  of  the  activity  to  a  third  party  if  the  procedure  is 
transparent  and  public  and  the  concession  value  should  have  a  threshold  of  at  least 
EUR 150 000. This has created interpretative problems with other types of concessions. 
Another  example  is  found  in  the  case  that  took  place  in  Austria  before  the  Federal 
Administrative  Court  (Bundesverwaltungsgericht  –  ‘BVwG’)  regarding  the  question 
whether  the  award  of  a  tobacconist’s  shop  is  a  service  concession  pursuant  to  the 
Austrian  Federal  Concessions  Procurement  Act  201835.  The  Federal  Administrative 
Court ruled that the tobacconist is not subject to instructions from a contracting authority, 
thus, the content of the alleged service is a special authorisation, and the tobacco licence 
does  not  constitute  a  service  concession  under  § 6  of  the  Federal  Concessions 
Procurement  Act  201836.  However,  in  a  second  decision  the  same  Court  ruled  the 
opposite  arguing  that  the  operating  risk  was  borne  by  the  concessionaire  and  the 
concession  contract  contained  mutually  binding  obligations.  On  the  basis  of  those 
circumstances, the Court concluded that the Federal Concessions Procurement Act 2018 
was applicable37. These cases demonstrate some of the challenges in the classification of 
public contracts as concessions contracts.  

33 Sweden reports that all exemptions allowing direct awards are a source of legal uncertainty and in certain 

cases incorrect application 

34 Italy indicates specifically this issue in respect of concessions. 
35  the  Federal  Concessions  Procurement  Act  2018  –  ‘FCPA  2018’  (Bundesvergabegesetz  Konzessionen  – 

BVergKonz 2018) 

36  LE  Europe  and  Spark  Legal,  Study  on  the  implementation  of  the  Concession  Directive,  final  report 

(2021) European Commission DG GROW, p 140.  

37  LE  Europe  and  Spark  Legal,  Study  on  the  implementation  of  the  Concession  Directive,  final  report 

(2021) European Commission DG GROW, p 140. 

21 

 
 
 
                                                 
Bulgaria  pointed  out  to  difficulties  in  determining  the  economic  balance  of  the 
concession  and  the  distribution  of  risks  between  the  contracting  authority  or  entity  and 
the concessionaire. 

As  far  as  transparency  is  concerned,  publication  of  prior  information  notices,  contract 
notice38  and  contract  award  notices39  is  indicated  as  difficult  in  Romania,  Spain  and 
Sweden. There are only few Member States with data that are specific to concessions. In 
Bulgaria,  this  database  primarily  provides  documentation  for  potential  concessionaires 
and shows to whom concessions have been awarded; while in Croatia and Czechia, the 
data sources are similar to public contracts databases, but specifically for concessions40. 
Although 29 out of 30 EU and EEA countries have an online platform where concession 
notices can be viewed41, good practices should be applied more widely across countries, 
as transparency issues are often reported. 

B.  The  most  frequent  sources  of  incorrect  application  of  rules,  are  concentrated 
around several issues. 

Many  Member  States  invoke  as  source  of  incorrect  application  linked  to  the  lack  of 
professionalisation  of  the  human  resources,  such  as  the  lack  of  procurement  skills  and 
insufficient  knowledge  of  the  rules  by  practitioners  (Cyprus,  Greece,  Denmark,  Latvia, 
Lithuania,  Italy,  Romania  and  Slovakia)  insufficient  human  resources  (Bulgaria  and 
Denmark) and or insufficient knowledge of the market (Belgium, Greece, Slovenia and 
Romania).  According  to  Romania,  lack  of  procurement  skills  may  cause  different 
interpretation and inconsistency by public authorities42. 

Modification  of  contracts  during  their  term,  including  wrongful  extension  of  contracts 
and  amendments  without  a  new  call  for  competition  are  another  source  of  wrong 
application frequently mentioned (Germany, Croatia, Finland, Latvia, Italy, Luxembourg, 
and  Spain).  Italy  who  indicates  specifically  this  issue  in  respect  to  concessions  also 
explains that due to the pandemic, this practice has been used often. The Italian National 
Competition  Authority  pointed  out  that  this  is  particularly  problematic  when  talking 
about  concessions  for  ports  for  example,  maritime  concessions  and  motorway 
concessions, as it postpones the competition. 

Member States mention also difficulties related to the calculation of the estimated value 
of  the  procurement  or  concession,  or  wrongful  calculation  of  the  value  as  below  the 
threshold,  to  avoid  application  of  the  public  procurement  rules  (Belgium,  Bulgaria, 
Germany,  France,  Latvia,  Luxembourg,  Lithuania,  the  Netherlands  and  Sweden).  It  is 
worth  noting  that  Sweden  reports  difficulties  linked  to  the  calculation  of  the  value  of 

38  Prior  information  notices  and  Concession  notices  are  published  by  the  Contracting  authorities  and 

Entities to announce the intention to tender out works or services.  

39  Concession award notices are published at the end of the tender procedure, and contain information on 

the outcome of that procedure. 

40  LE  Europe  and  Spark  Legal,  Study  on  the  implementation  of  the  Concession  Directive,  final  report 

(2021) European Commission DG GROW, p 127. 

41  LE  Europe  and  Spark  Legal,  Study  on  the  implementation  of  the  Concession  Directive,  final  report 

(2021) European Commission DG GROW, p131. 

42 Romania country report, available at: Country reports and information on EU countries (europa.eu) 

22 

 
 
 
 
                                                 
services concessions. A third of the Member States report the issue of artificial splitting 
into lots to award contract for lots below the threshold to avoid application of the public 
procurement legislation (Croatia, France, Greece, Latvia, Italy, Luxembourg, Lithuania, 
Romania  and  Slovakia).  Another  example  is  found  in  APOCA  Parking  Danmark  A/S  v 
Region  Hovedstaden43,  which  concerned  the  re-tender  of  a  public  service  contract  as  a 
concession contract. In this case, several claims were made, including that the contracting 
authority  was  in  breach  of  Article  8(2)  and  (3)  of  the  Directive  as  the  value  of  the 
concession  and  the  method  for  calculating  this  value  were  not  stated  in  the  tender 
documents.  The  complaints  board  found  that  the  contracting  authority  had  breached 
Article  8(3)  of  the  Directive,  concerning  the  threshold  and  methods  for  calculating  the 
estimated value of concessions, because it had not stated the method for calculating the 
value of the concession in the tender documents44. 

C. Additionally, there were identified patterns which are not illegal or non-compliant but 
which may be an indication of possible shortcomings in the implementation of the rules. 

For instance, there appears to exist a preference of contracting authorities and entities to 
use the lowest price as award criterion since it is perceived as simpler and more objective 
(e.g. Slovenia indicated that contracting authorities use the price as sole criterion in 90% 
of the contracts). Best price-quality ratio is used in limited cases, due to fears of risks in 
compliance audits (Bulgaria, Cyprus, Latvia, Slovenia, Romania and Sweden).  

Another pattern that emerges is the absence of, or insufficient, prior market consultation 
resulting  in  non-realistic  or  outdated  specifications  (Greece,  Lithuania,  Spain  and 
Sweden). 

As  regards  deadlines,  Croatia  points  out  the  use  of  shortest  possible  deadlines  for 
submitting tenders or requests to participate. On the other hand, Germany and Italy points 
out  that the overall  duration of procurement  procedures is  perceived as very long.  Italy 
indicates specifically this issue in respect to concessions, while Germany indicate that the 
very  long  deadlines  of  EU  public  procurement  law  are  perceived  as  an  obstacle  to 
responding flexibly to needs and market situations. 

Finally, the lack of monitoring and control of the performance of concession contracts by 
the  contracting  authorities  and  entities  after  the  award  is  mentioned  in  Bulgaria  and 
Greece. 

Fraud, corruption, conflict of interest and serious irregularities 

Combating fraud, favouritism and corruption and taking measures to identify and remedy 
conflicts  of  interest  in  concessions  is  a  legal  obligation  for  Member  States  and 
contracting  authorities  and  entities  under  Article  35  of  the  Directive.  Member  States 
outlined their legislative solutions, the institutional set-up, the “soft law” measures taken, 
and  their  prevention  activities,  with  certain  statistics  on  the  functioning  of  the  system. 
Most Member States do not differentiate between the three Directives, but issues related 

43  APOCA  Parking  Danmark  A/S  v  Region  Hovedstaden,  verdict  of  14 

June  2019, 
https://klfu.naevneneshus.dk/media/documents/Apcoa_Parking_Danmark_AS_mod_Region_Hovedsta
den.pdf (last accessed 22 November 2020). 

44  LE  Europe  and  Spark  Legal,  Study  on  the  implementation  of  the  Concession  Directive,  final  report, 

European Commission DG GROW, pp 146-147. 

23 

 
 
 
                                                 
to fraud, corruption, conflict of interest and other irregularities are applicable horizontally 
through the three Directives. In the majority of cases, the general anticorruption and anti-
collusion legislation and institutions precede the Directives.  

Public  procurement  and  concessions  can  be  particularly  sensitive  to  the  emergence  of 
cartels as they have features that make collusion easier or more attractive. For example, 
competing undertakings may secretly agree in advance who will make the offer, thereby 
manipulating  the  outcome  of  the  public  procurement  procedure  to  their  advantage45.  In 
Sweden, the main findings of a survey on conflicts of interest indicated that the risk of 
undue  influence  is  largest  when  there  are  family  or  friendship  ties  between  employees 
and  tenderers,  and  when  using  consultants  to  assist  the  contracting  authority  in  a 
procurement;  and  corruption  is  most  common  either  during  the  planning  phase  and 
preparation of the procurement documents or after a procurement has been completed, at 
contractual negotiations or during the contract period through influencing calls within the 
contract46.  

A.  Responsible Authorities  

In  most  Member  States,  national  competition  authorities  are  primarily  responsible  for 
carrying  out  such  policies  (e.g.  in  the  Netherlands  the  Netherlands  Authority  for 
Consumers and Markets investigates fraud, collusion, corruption and conflict of interest 
in  procurement  procedures).  However,  few  Member  States  have  dedicated  specific 
agencies to the monitoring of antifraud and anticorruption, next to the supporting role of 
the National Competition Authorities (Italy47, France48, Malta and Romania). Most of the 
authorities in charge of anti-corruption strategy also produce annual reports.  

Among  the  different  agencies,  the  importance  of  establishing  and/or  maintaining  clear 
communication  and  cooperation  channels  between  competition  authorities,  central 
procurement authorities and contracting authorities is generally acknowledged as a major 
element of the policy to fight collusion. 

B. Soft law measures complement the legal framework 

The “soft law” measures49  are widely used and displayed the  greatest coherence  across 
Member  States.  They  include  national  strategies  against  corruption,  manuals  and 
guidance  notes  (especially  on  methods  to  conduct  market  research,  negotiations  or  to 
detect  collusive  behaviour),  professionalisation,  education  and  training,  or  codes  of 
conduct  for  civil  servants  (when  not  set  out  in  legislation)  and  sometimes  also  for 
economic operators. The focus devoted to  soft measures shows that Member States are 
aware  that  activity  in  the  field  of  integrity  and  anticorruption  requires  not  just  legal 
barriers,  but  also  a  positive  influence  on  administrative  culture,  on  personal  behaviour 
and  values  (Belgium,  Croatia,  Lithuania,  and  the  Netherlands).  For  example,  Belgium 

45 Belgium country report, available at: Country reports and information on EU countries (europa.eu).  
46 Sweden country report, available at: Country reports and information on EU countries (europa.eu). 
47  Autorita’ Nazionale Antifrode Anticorruzione 
48  Agence Française Anticorruption 
49  Measures  that  do  not  amount  to  a  strict  legal  obligation  on  the  side  of  the  practitioners  of  procurement  and 

concessions. 

24 

 
 
 
 
 
 
                                                 
published  in  2017  a  Guide  named  “Collusion  in  Public  Procurement”  to  raise  public 
buyers’  awareness  of  the  dangers  and  high  costs  of  this  prohibited  form  of  cartel50. 
Likewise,  Croatia  reported  that  in  order  to  raise  public  awareness  on  problems  of  bid 
rigging,  the  Croatian  Competition  Authority  has  recently  published  a  guide  for 
contracting  authorities  in  detecting  and  tipping-off  bid-rigging  cartels  in  public 
procurement51 and Estonia provided an account of diverse documents on the subject by 
the Ministry of Justice52.  

C. Conflict of interest 

Further to that, most of the Member States provide some specific national measures for 
conflict of interests. Some Member States report more detailed rules on the definition of 
conflict of interests than the one provided by the Directives. In general, these pertain to 
clarifying  family  and  personal  links  that  fall  admittedly  in  the  scope  of  the  notion  of 
interest, as well as rules on shareholding in private companies (Hungary, Croatia)53. 

Many  Member  States  indicate  declarations  on  the  absence  of  conflict  of  interests, 
impartiality and objectivity, as a measure used at national level. In some cases, there is a 
general  obligation  to  declare  any  possible  conflict  of  interest,  with  the  obligation  to 
publish that information (Hungary, Ireland, and Poland). In general, penalties for breach 
of such rules are in place. For example, Croatian legislation mandates for the contracting 
authority  to:  i)  publish  on  its  website  a  list  of  economic  entities  with  which  the 
representative  of  the  contracting  authority  or  its  affiliated  persons  is  in  conflict  of 
interest,  or  a  notice  that  such  entities  do  not  exist  (the  information  has  to  be  updated 
without delay if changes occur); and ii) in the procurement documentation for a particular 
public  procurement  procedure,  to  provide  a  list  of  economic  entities  with  which  the 
representative  of  the  contracting  authority  is  in  conflict  of  interests,  or  to  indicate  that 
such entities do not exist. If the contracting authority does not have its own Internet site, 
it is obliged to publish the list on the bulletin board, in the Official Gazette or otherwise 
make it permanently available to the interested public54. 

Provisions in contracts which are contrary to the rules regulating conflict of interests are 
null and void. Member States are currently pursuing collusion prevention and detection 
policies largely inspired by the OECD guidelines55. Measures to fight collusion that are 
common  in  Member  States  include:  elaboration  and  dissemination  of  guidance  on 

50Autorite Belge de la Concurrence, Collusion dans le marche publics : guide pour le acheteurs charge des 

marches publics (2017) available at: 20170131_marches_publics.pdf (abc-bma.be).  

51  Aztn,  Vodic  Za  Narucitelje  u  Otkrivanju  i  Prijavi  Kartela  u  Javnoj  Nabavi,  available  at: 

vodic_za_narucitelje.pdf (aztn.hr). 

52  Estonia,  Conflict  of  Interest,  available  at:  Conflict  of  interests  |  The  Estonian  Patent  Office 

(korruptsioon.ee). 

53 Hungary, country report available at: Country reports and information on EU countries (europa.eu) p. 13. 
Croatian, country report available at: Country reports and information on EU countries (europa.eu) p. 
17.  

54 Croatian, country report available at: Country reports and information on EU countries (europa.eu) p. 17.  
55  OECD  Recommendation  on  Fighting  Bid  Rigging 
in  Public  Procurement  available  at: 
https://www.oecd.org/daf/competition/oecdrecommendationonfightingbidrigginginpublicprocurement.htm.  

25 

 
 
 
 
 
 
 
                                                 
detection,  awareness-raising  and  training56,  direct  helplines  for  reporting  alleged  cases 
and whistle-blower programs, leniency programmes for operators that come forward with 
information,  criminal  law  sanctions  for  colluders  and  prevention  activities  (Estonia, 
Czechia, Malta, Slovakia). As far as training is concerned, Czechia, reported that through 
the  Ministry  of  Regional  Development  they  have  implemented  an  education  campaign 
for conflict of interests in the public contracts in 2018-202057. 

As the countries with the largest number of concessions, France and Italy have reported 
the following:  

Case Study - France 
The report  published  by  l’Agence  Française  Anticorruption  in  2019  concluded that  the  public 
prosecutor's  offices  referred  813  cases  of  breach  of  probity,  which  reflects  an  increase  of 
+12.6% compared to 2014 (722 cases referred). In the context of concession contracts, France 
reported  that  there  is  a  risk  associated  with  an  undertaking  responsible  for  the  operation  of  a 
work  which,  before  the  expiry  of  the  concession,  promises  a  future  profit-making  job  to  a 
representative of the contracting authority in exchange for an extension of the concession. This 
type of behaviour was sanctioned by a court in France. The president of a tourist development 
company  was  fined  EUR  15 000  and  suspended  10  years  in  prison  for  active  influence 
trafficking and to pay symbolic EUR 1 in damages to the municipality concerned. 

Source: l’Agence Française Anticorruption, La mise en place d’un dispositif de prévention de risques de corruption 
dans le secteur du bâtiment et des travaux public (2022), available at : Guide_BTP_AFA_Web.pdf (agence-francaise-
anticorruption.gouv.fr) 

Case Study - Italy 

In 2019, 40% of sanctions in public contracts by the Italian anticorruption authority were due to 
omissions or wrong declarations. The Italian Antifraud Committee reported that within public 
procurement:  conflict  of  interests  represented  7%  of  the  irregularities,  failure  to  comply  with 
time  limit  to  receive  tenders  represented  4%,  non-compliance  with  time-limits  of  the  award 
represented 3%, transparency problems represented 1%, extension of the award was 0.55%, and 
the remaining part was composed by “other”. 

Source:  Autorita’  Nazionale  Anticorruzione,  relazione  annuale  2021  (2021)  available  at:  Consulta  i  documenti  - 
www.anticorruzione.it; Presidenza del Consiglio dei Ministri Dipartimento per le Politiche Europee, Annual Report 
(2019) available at: relazione-annuale-colaf-2019.pdf (politicheeuropee.gov.it) 

5.3. 

Providing better access to the concessions market  

The  second  main  objective  of  the  Concessions  Directive  is  to  improve  the  access  of 
economic operators to the concessions markets. This is to be achieved by providing for 
principle-based  provisions  aimed  at  increasing  the  transparency  and  fairness  of  award 
procedures.  

56  Czechia,  country  report  available  at:  Country  reports  and  information  on  EU  countries  (europa.eu). 
Estonia, E-course on prevention of corruption and conflict of interest in the public sector, available at: 
E-course  on  Prevention  of  Corruption  and  Conflict  of  Interest  in  the  Public  Sector  |  The  Estonian 
Patent Office (korruptsioon.ee). 

57 Czechia, country report available at: Country reports and information on EU countries (europa.eu). 

26 

 
 
 
 
 
 
 
 
                                                 
The  following  indicators  are  used  in  this  section  to  assess  the  extent  to  which  better 
access to the market has been achieved: 

 

 

 

 

transparency trough publication;  

number of tender offers;  

SMEs participation in concession awards; 
cross-border58 and foreign59 participation in the EU concession market.  

Finally, for a closer look of how the objective of providing better access to the market is 
achieved  in  different  sectors,  a  special  Chapter  of  this  Staff  Working  Document  is 
dedicated to a sectoral overview. 

Transparency through publication 

The  Concessions  Directive  includes  certain  provisions  directly  obliging  contracting 
authorities to publish a concession notice (or a “prior information notice” in the case of 
social or other specific services), which announces the intention to award a concession, 
and  to  publish  a  concession  award  notice,  which  announces  the  result  of  the  tender 
procedure. 

The  publication  of  these  notices  can  be  tracked  using  Tenders  Electronic  Daily  data. 
Figure 8 below, presents the number of publications – calls for competition, which gather 
prior information notices60 or concession notices61 and concession award notices62.  

Figure 8: Calls for competition and concession award notices by year [number] 

58  Contracts awarded intra-EU by a contracting authority or contracting entity in one Member State to an 

economic operator from another Member State. 

59  Contracts  awarded  by  a  contracting  authority  or  contracting  entity  in  one  Member  State  to  an 

economic operator from a third country. 

60  Prior  information  notices  concerning  concessions  for  social  and  other  specific  services,  as  referred  to  in  Article 

31(3), published on standard form (SF) 23, whenever such form was used as a concession award notice. 

61  Concession notice - standard form (SF) 24. 
62  Concession  award  notice  -  standard  form  (SF)  25.  Concession  award  notices  containing  information  about 

cancelled or ineffective procedures (e.g. no offers submitted) were removed from the dataset. 

27 

 
 
 
                                                 
Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data 

The number of concessions for which calls for competition and award notices have been 
published  has  grown  significantly  since  2016.  However,  the  figure  shows  a  significant 
decrease  in  the  number  of  calls  for  competition  in  2020,  as  a  result  of  the  COVID 
pandemic and slowdown in economic activity. This however has not been reflected in the 
number  of  award  notices  in  2021  which  are  back  to  pre-COVID  level.  The  significant 
increase  in  publication  after  2016  can  undoubtedly  be  interpreted  as  a  clear  sign  of 
increased transparency in the call for competition and award of concession contracts.  

Figure  8  above  however  also  indicates  that  the  number  of  published  concession  award 
notices has constantly been significantly lower than the number of concession notices - 
invitations to tender. Around half of invitations to participate in a concession procedure 
resulted in awards of such contracts. There may be many reasons for this, including:  

 

 

 

contract notices can contain multiple lots or awards, which do not always match in 
one-to-one relationship;  

there may have been a number of cancelations of calls for competitions; 

some contracting authorities may not  have been  complying with  the obligation to 
publish an award notice announcing the results within 48 days after the award of a 
concession).  

According to  London Economics Europe and Spark Legal (2021) a similar discrepancy 
between initiated and concluded concessions procedures had also been identified, during 
the 2012 to 2019 period hence, also before 18 April 2016 – the transposition deadline of 
the Concessions Directive. 

When looking at the above two types of publications across EU Member States and the 
EEA,  there  seem  to  be  a  similar  gap  across  all  Member  States  and  EEA  countries,  see 
Figure 9 below.  

28 

 
 
 
 
Figure 9: Calls for competition and concession award notices by country [number] 

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily for 2016-2021, EU-
27 and EEA 

Because  of  its  long-standing  tradition  in  using  concessions  as  a  formula  for  delivering 
public services, France has published the largest number of calls for competition, as well 
as concession notices  (nearly  4 000, compared to  2 300). Germany  follows  (1 300 calls 
for  competition)  and  then  Italy  and  Spain  (873  and  628  invitations  to  tender, 
respectively). 

Publication of concession contract notices 

Transparency  can  be  monitored  through  various  aspects  of  the  concession  procedure. 
Such procedures for example can include the publication of a concession notice which is 
a  sign  of  transparency  and  market  openness.  The  Concessions  Directive  foresees  cases 
and  conditions  where  non-publication  of  such  initial  announcement  is  allowed  (e.g. 
absence of competition for technical reasons of the existence of an exclusive right). The 
latter will for example occur frequently in the energy supply, which is discussed in more 
detail in the sectorial analysis. 

Figure  10  below  shows  that  a  vast  majority  of  concession  awards  were  subject  to  prior 
publication  of  a  concession  notice  (notably  92 %  of  notices).  Detailed  data  used  to 
produce this Figure, as well as Figure  11 (number of award notices), are provided in the 
Annex (Table 5 and Table 8). 

Figure 10: Concession award notices by procedure type and year [number, %]  

29 

 
 
 
 
Source: In-house analysis based on data from the EU  Official Journal/Tenders Electronic Daily for 
2016-2021 

Figure 11 below however indicates that the value of concessions awarded without prior 
publication of a concession notice was much more significant (52 %) than their share in 
the  number  of  notices.  Concessions  with  the  larger  values  were  awarded  through 
procedures  without  prior  publication  of  a  concession  notice,  hence  without  a  call  for 
competition. 

Figure 11: Concession award notices by procedure type and year [value in billion EUR, %]  

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data for 2016-2021 

When looking into detailed data (see Annex), it appears that an important share of these 
awards  without  prior  publication  of  a  contract  notice  occurred  in  the  public  utilities 
sector,  in  particular  in  electricity  distribution  (Common  Procurement  Vocabulary 
division  653),  which  is  a  market  with  many  features  of  a  natural  monopoly  and  hence 
may  be  characterised  by  the  absence  of  competition  due  to  technical  reasons  or  the 
existence of exclusive rights. 

30 

 
 
 
 
 
Removing public utilities from the overall value figures results in an increased share of 
concession procedures subject to a complete publication cycle (a prior concession notice 
and an award notice) to around 95 %, see below in Figure 12. It nevertheless also results 
in a decrease in the overall value of contracts (EUR 178 billion compared with an initial 
estimate of EUR 377.5 billion). 

Figure  12:  Concession  award  notices  by  procedure  type  and  year-  excluding  public  utilities  sector 
[value in billion EUR, %] 

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data for 2016-2021, 
EU-27 and EEA 

To conclude, despite frequent awards of concessions without a call for competition in the 
electricity  supply  sector,  the  market  remains  characterised  by  very  high  percentages  of 
concessions which have been subject to prior publication of a call for competition. The 
situation  appears  to  have  improved  since  2017,  with  a  continuing  upward  trend  in  the 
number of concessions with prior publication of a concession notice.   

Number of tender offers 

The number of tender offers submitted provides an indication of the extent to which the 
Concessions  Directive  has  had  an  impact  on  the  access  of  potential  bidders  to  the 
concessions  market.  The  data  on  the  average  number  of  tender  offers  per  concession 
award notice, provided in Figure 13, does not seem to indicate a clear conclusion about the 
extent  to  which  the  number  of  competitive  bidders  has  increased  over  time.  Figure  13 
shows a changing trend with an initial decrease, followed by a return to the average level 
of 2.44 of offers per concession award notice. A comparison with the findings of London 
Economics  Europe  and  Spark  Legal  (2021)  seems  to  confirm  this  conclusion,  as  that 
study concludes that the average number of bids received across all awarded concessions 
was 2.9 in the pre-Directive period and 2.7 in the post-Directive period. 

31 

 
 
 
 
 
 
 
Figure 13: Average number of offers per concession award notice, by year [mean] 

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data for 2016-2021, 
EU-27 and EEA 

The above  result is however to  some extent influenced by the contracts  awarded in  the 
public  utilities  sector  where  (as  previously  indicated)  awards  without  a  call  for 
participation in tenders occur more frequently due to the existence of exclusive rights or 
due  to  technical  reasons.  If  this  sector  is  removed  from  the  data  sample,  the  average 
number of tender offers submitted would slightly increase to 2.54, as well as the overall 
distribution across years (see Table 7 in Annex).  

SME participation in concession awards 

The  Concessions  Directive  also  aims  at  promoting  the  participation  of  SMEs  in  the 
concession  market.  Because  concession  contracts  are  often  awarded  to  multiple 
companies, the group of winning contractors may consist of SMEs or a mix of SMEs and 
larger firms.  

As  recognised  in  the  SME  Strategy  for  a  sustainable  and  digital  Europe63,  public 
procurement  provides  for  untapped  opportunities  within  the  single  market  for  SMEs, 
including start-ups. However, it is also recognised that “SMEs find it hard to successfully 
compete in public tenders”. On the one hand, the public sector is relatively risk-averse, 
and frequently lacks the skill set to procure innovation. On the other hand, many SMEs 
find  public  tendering  complex  or  unsuitable  for  them  It  can  be  assumed  that  the  same 
challenges  characterise  the  administrative  process  leading  to  the  award  of  concessions 
contracts, as they form part of the widely defined public procurement market. During the 
Stakeholders’ event, participants have explained that the transfer of operating risk to the 
concessionaire  could  be  a  deterrent  to  SMEs  participation  in  concession  calls  for 
competition, in particular in view of the fact that high value concessions imply an upfront 

63  Communication  from  the  Commission  to  the  European  Parliament  and  the  Council,  the  European 
Economic and Social Committee and the  Committee of Regions:  An SME Strategy for a sustainable 
and digital Europe, COM (2020)103, 10.3.2020. 

32 

 
 
 
 
                                                 
investment  from  the  concessionaire  and  SMEs  may  not  have  the  necessary  financial 
capacity for such investment.  

A  study  covering  the  years  2011  to  201764  estimates  that  61 %  of  the  total  number  of 
public  contracts  above  EU  thresholds  were  awarded  to  SMEs.  However,  these  contacts 
account only for only 33 % of the total contract value in period analysed. The SME share 
in awarded concessions is nonetheless much lower than their success rate in the overall 
public procurement market. 

The  participation  of  SME  can  be  also  tracked  using  the  information  contained  in  the 
standard  forms  announced  via  Tenders  Electronic  Daily65.  The  data  presented  below 
refers  to  the  winning  concessionaire  type  per  concession  award  notice.  If  a  particular 
concession  award  notice  contained  more  than  one  award,  and  only  some  of  the 
concessions  were  awarded  to  an  SME  then  the  entire  concession  award  notice  is 
classified as “mixed”. 

Figure 14: Share of concession award notices in 2016-2021, by contractor size class and year [% of 
number] 

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data for 2016-2021, 
EU-27 and EEA 

The share of concessions awarded to SMEs has increased over the investigated period in 
terms of the number of concession award notices, from 22.4% in 2016 to 31.6% in 2021. 

64  De Bas, P., Hausemer, P., Kruger, T., Rabuel, L., de Vet, J.M., Vincze, M.(2019), page 37. 
65  The  interpretation  of  the  data  presented  in  this  section  should  nonetheless  be  made  with  a  disclaimer 
that  the  information  is  based  on  self-declarations  of  the  contracting  authorities,  as  provided  in  the 
standard forms. It is also important to clarify that data used to produce the Figure is different from what 
is presented in London Economics Europe and Spark Legal (2021) study (e.g. Figure 39, page 88 in the 
external  source).  This  is  due  to  the  fact  that  the  current  analysis  focuses  only  of  standard  forms 
dedicated to the Concessions Directive, whereas the external study also included concessions awarded 
using other public procurement Directives, such as Directive 2014/24/EC. Secondly, the reference year 
in Figure 4 is the  year of publication in EU Official Journal/Tenders Electronic Daily,  while  London 
Economics Europe and Spark Legal (2021) based their visualisation on the concession award date.  

33 

 
 
 
 
                                                 
On  average,  between  2016  and  2021,  SMEs  were  indicated  as  winners  in  29.2%  of 
concession  award  notices  (1 266  contract  award  notices),  whereas  contracts  with 
concessionaires  of  mixed  sizes  constituted  3.6 %  or  157  notices.  The  remaining 
concessions, namely 67.2% were concluded with large enterprises (2 912). 

Even  if  the  trend  is  positive,  SMEs  do  not  account  for  a  similarly  important  share  of 
contracts won in terms of their value. Figure 15 below visualises the same data grouped by 
winners’  size  classes  but  adjusted  by  taking  into  account  the  concessions  value.  It 
confirms  that  SMEs  were  principally  successful  in  low  value  awards  (SMEs  shares 
varied between 11.2 % in 2017 to 3.9 % in 2021). Although large enterprises won only 
two in three concessions awarded in the investigated period, such contracts accounted for 
nearly 92 % of the market in terms of value. 

Figure 15: Share of concession award notices in 2016-2021, by contractor size class and year [% of 
value] 

Source: In-house analysis based on EU Official Journal/Tenders Electronic Daily data for 2016-2021, 
EU-27 and EEA 

Detailed data used to produce the above two Figures are available in Annex (Table 9). 

The  results  can  be  explained  by  the  fact  that  concessions  usually  refer  to  high  value 
contracts, whereas the above study concludes that the larger the contract value, the less 
likely  an  SME  is  able  to  win  a  contract.  The  value  of  a  public  contract  for  which 
companies compete is the most important explanatory factor for the probability of SMEs 
(and  individually  for  micro-,  small-  and  medium-sized  enterprises)  to  win.  SMEs 
themselves  see  large  contract  values  as  the  key  barrier  for  them  to  participate66. 
Stakeholders  mentioned  during  the  Stakeholders’  Event  that,  as  opposed  to  a  public 
contract,  concessions  require  significant  up-front  investment  and  the  associated  risk, 
therefore SMEs are rather reluctant to participate in calls for participation in concessions. 

66  De Bas, P., Hausemer, P., Kruger, T., Rabuel, L., de Vet, J.M., Vincze, M.(2019), page 54. 

34 

 
 
 
 
                                                 
Finally,  it  should  be  noted  that  even  in  the  broader  public  procurement  market  the 
number  or  value  of  concessions  awarded  to  SMEs  still  constitute  a  smaller  proportion 
than the overall importance of SMEs in the economy. This suggests that further ways of 
encouraging SMEs to participate in concession award procedures could be explored (e.g. 
expanding  their  role  as  subcontractors,  easy-to-understand  guidelines  wider  use  of 
eProcurement  that  facilitates  access  to  business  opportunities,  preferential  purchasing 
schemes, etc.). 

Cross-border and Foreign Participation in the EU concessions market 

Access  to  EU concessions markets  is  open to EU based  companies but  also  to  non-EU 
based  companies.  The  Agreement  on  Government  Procurement  and  the  Free  Trade 
Agreements  provide  for  legal  clarity  for  non-EU  operators.  The  World  Trade 
Organisation  Agreement  on  Government  Procurement  is  the  main  international 
agreement relating to public procurement67. It aims at ensuring fair, transparent and non-
discriminatory  conditions  of  competition  for  purchases  of  goods,  services  and 
construction  services  by  the  public  entities  covered  by  the  Agreement.  While  the 
Agreement  on  Government  Procurement  covers  works  concessions  contracts68,  the  EU 
has  restricted  that  access  to  concession  contracts  awarded  by  central  government 
entities69  or  by  sub-central  government  entities70  but  not  when  awarded  by  utilities71. 
Furthermore, the EU has committed works concessions under national treatment regime 
vis-a-vis  eight  GPA  Parties  (Iceland,  Liechtenstein,  Norway,  Aruba,  Switzerland, 
Montenegro  and  the  United  Kingdom  (above  5 000 000  SDR)  and  Korea  (above 
15 000 000  SDR).  The  following  EU  Bilateral  Free  Trade  Agreements:  EU/  Andean 
Community,  CETA  (Canada),  EU  Chile,  and  EU  Singapore  also  cover  works 
concessions. 

Services  concessions  are  covered  neither  by  the  Government  Procurement  Agreement 
nor by the government procurement chapters in any bilateral trade agreement72.There are 
various  ways  through  which  public  procurement  legislation  can  influence  international 
competition  and  trade.  It  usually  forms  part  of  market  entry  rules  defining  the  way  in 
which  foreign  partners  can  compete  on  the  local  market.  For  example,  in  certain 
jurisdictions bidding for tender procedures may require local presence or participation in 
an  international  trade  agreement.  In  the  EU,  local  presence  is  not  a  prerequisite  for 
participation  in  public  procurement,  as  the  foreign  access  to  the  internal  market  is  in 
principle open to foreign bidders. 

67  At present, Government Procurement Agreement has 21 parties, which together cover 48 WTO Members (the EU 
and its 27 member States are counting as  one Party). This includes six new Parties whose respective accessions 
became effective after the entry into force of the Government Procurement Agreement 2012. 
It covers “procurement by any contractual means”, cf. Art. II.2 (b) of the GPA. Note, however, that the GPA can 
only apply to situations where the contracting authority actually acquires property of the construction. A works 
concession contract under which the ownership in the work remains with the concessionaire would not fall within 
the scope of government procurement.  

68 

69  Annexe 1 of the EU schedule European Union (wto.org). 
70  Annex 2 of the EU schedule European Union (wto.org). 
71  Annex 3 entities European Union (wto.org). Iceland, Liechtenstein, Norway, the Netherlands on behalf of Aruba, 
Switzerland,  Montenegro  and  the  United  Kingdom  (above  5,000,000  Special  Drawing  Rights  (SDR))  and  for 
Korea (above 15,000,000 SDR). 

72  While government procurement is the acquisition by a state body of goods and/or services, a services concession 
typically is a concession that allows the concession holder to offer services (e.g. a public transport service) to the 
broader public. It is then not the state who actually purchases those services. 

35 

 
 
 
                                                 
The cross-border public procurement activities of companies usually distinguish between 
direct and indirect cross-border procurement, which can be described as follows: 

 

 

firms  bid  from  their  home  market  and  win  contracts  for  invitations  to  tender 
launched in another Member State (direct cross-border procurement); or  

firms  bid  for  contracts  through  its  local  subsidiaries  and  win  contracts  for 
invitations to tender launched by authorities of a country different from the country 
where the firm has its headquarters (indirect cross-border procurement). 

A  recent  study  by  Prometeia,  BIP  (2021)  provides  certain  estimates  of  cross-border 
activity  in  procurement  covered  by  all  public  procurement  directives.  The  results  are 
presented  in  Figure  16  below,  separately  for  awards  with  values  below  and  above 
EUR 200 million (hence in line with the methodology adopted in the quoted study). 

Figure  16:  Domestic  or  cross-border  awards  by  type  of  procurement  in  2016-2019  [percentage  on 
total number and value] 

Awards below EUR 200 million 

Awards above EUR 200 million 

Source:  Prometeia,  BIP,  Economics  for  Policy  -  a  knowledge  Centre  of  Nova  SBE  Lisboa  (2021), 
pages 18 and 20. 

36 

 
 
 
 
 
Cross-border activity concerns around 20 to 25 percent of contracts awarded above EU 
thresholds (all public procurement Directives combined). The shares are slightly higher 
for awards exceeding EUR 200 million, confirming that high value contracts are usually 
more attractive to foreign bidders and hence characterised by higher propensity to cross-
border wins, up to 32.6 %, for high value contracts.  

The  Prometeia,  BIP  (2021)  study  also  provides  exact  estimates  for  the  cross-border 
procurement  allocated  to  each  of  the  procurement  Directives,  allowing  a  comparison 
between concessions and other public contracts. 

Table  1:  Number  and  value  of  awards  and  cross-border  procurement  by  Directive,  2016-2019 
average [%] 

Awards below EUR 200 million 

Awards above EUR 200 million 

Source:  Prometeia,  BIP,  Economics  for  Policy  -  a  knowledge  Centre  of  Nova  SBE  Lisboa  (2021), 
Table 2-13 on page 66 and Table 2-28 on page 78. 

On the basis of the Prometeia, BIP (2021) study, high value concession contracts account 
for a significant share of the total number of high value public contracts (18.9 % of their 
total value), compared to only 3 % among the low value awards. Among the high value 
concession  contracts,  only  8 %  (in  value  terms)  of  contracts  were  awarded  on  a  cross-
border  basis,  as  opposed  to  37 %and  49 %  for  the  other  two  public  procurement 
Directive.  Despite  the  economic  significance,  the  share  of  direct  cross-border  awards 
under  the  Concession  Directive  is  rather  low,  indicating  a  low  penetration  rate  into 
domestic concessions markets. This could partly be explained by the relative importance 
of  service  concessions  in  the  overall  amount,  which  as  such  are  considered  in  the 
literature as less tradable than goods and works.  

37 

 
 
 
 
 
In  order  to  assess  the  penetration  rate  of  non-European  companies,  the  award  notices 
from the Tender Electronic Daily database have been analysed for the same period. Only 
69 contracts have been awarded directly to concessionaires located in a country different 
from the country of the contracting authority, among which 51 were awarded to operators 
established outside the EU. 

Figure 17: Direct cross-border awards by the location of the winning company (intra-EU and non-
EU), left chart - shares [number, %], right chart – overview by countries [number] 

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

As shown in  Figure  17 above, when non-EU concessionaires are compared with winners 
located  in  other  Member  States,  this  proportion  is  about  one  to  three.  It  shall  be  noted 
that in the above overview, the EEA countries are classified as third countries.  

Concession  contracts  awarded  directly 
to  non-EU  operators  mainly  concern 
administrative  or  diplomatic  services  abroad,  usually  launched  by  the  Ministries  of 
Foreign Affairs for their local representations. Examples of such concessions include: 

• 

• 

• 

• 

the establishment and operation of a visa centre abroad; 

the issuing of digital IDs for residents; 

the support for SMEs and intermediate-sized companies and their local subsidiaries 
abroad within the framework of the public export service; 

organisation of a professional fairs during an international summit. 

As  for  the  number  of  contracts  awarded  to  firms  located  in  the  United  Arab  Emirates 
(AE) and Mauritius (MU), all these awards (except one) were awarded to concessionaires 
from  the  same  corporate  group.  These  firms  specialise  in  technology  services  for 
governments  and  diplomatic  missions,  such  as  the  reception  of  applications  for  visas, 
permits  and  travel  documents,  as  well  as  performance  of  administrative  and  non-
judgmental  tasks  related  to  such  services  for  governments.  Member  States,  which 
awarded  concessions  to  firms  of  these  corporate  groups  concerning  the  various 
diplomatic  services  to  citizens  include  the  Czechia,  Denmark,  Estonia,  Germany  and 
Slovakia.   

To  complement  the  above  insight,  and  obtain  a  greater  granularity  in  the  results,  an 
assessment of the ownership structure and, in particular, the identification of the Global 

38 

 
 
 
 
Ultimate Owner73 of the firm winning concession contracts was carried out on the basis 
of data sought in Orbis BvD. This was subsequently used to identify winning companies, 
which were owned by firms located in countries different from those of the contracting 
authority (i.e. estimate the indirect cross-border procurement). Around 86 % of winning 
companies  from  the  Tenders  Electronic  Daily  were  successfully  matched  with  Orbis 
BvD.  Still,  even  when  matched,  some  of  the  firms  did  not  have  complete  information 
about their Global Ultimate Owners. In view of the above, for the purpose of this report, 
in those cases where the information on Global Ultimate Owner is missing (because no 
such information is available in Orbis BvD or the firm was not found in this database), 
the winning firm is assumed to be the Global Ultimate Owner and its country of location 
has been used in the indirect cross-border overview. The results of the above process are 
presented in the next graph. 

Figure 18: Indirect cross border awards by location of the global ultimate owner of the winning 
company [number,%] 

Source: In-house analysis based on the Official Journal/Tender Electronics Daily data for 2016-2021, 
EU-27 and EEA 

During the 2016 to 2021 period, roughly 13.7 % of concession contacts were awarded to 
local  subsidiaries  of  companies  located  in  countries  different  from  the  country  of  the 
contracting authority. The above results relate to the most recent years but are broadly in 
line with the earlier presented estimates of Prometeia (2021) and presented above. 

As evidenced by Figure 19 below the share of winning firms owned by a Global Ultimate 
Owner established in another EU country was around 8.5 %, compared to non-EU Global 
Ultimate Owners, which accounted for 5.2 % of all awarded concessions. More details on 
the  geographic  location  of  the  ultimate  owners  of  companies  winning  concession 
contracts in the EU are provided below. 

73  The independent shareholder with the highest direct or total percentage of ownership. The geographical 
location allows distinguishing between the Global Ultimate Owner from the Domestic Ultimate Owner. 
The minimum percentage of control in the path from a subject company to its Ultimate Owner chosen 
for the analysis presented in this document was 50.01 %. 

39 

 
 
 
 
                                                 
Figure 19: Indirect cross-border awards by the location of the global ultimate owner of the winning 
company (intra-EU and non-EU) – overview by countries [number] 

Source:  In-house  analysis  based  on  Official  Journal/Tender  Electronics  Daily  data  for  2016-2021, 
EU-27 and EEA 

As presented in Figure 19, firms with headquarters in Luxemburg were among the most 
frequent  winners  of  indirect  cross-border  concession  contracts,  followed  by  France, 
Germany and Sweden. For non-EU countries, 165 concession contracts were awarded to 
local  subsidiaries  of  United  Kingdom-based  companies  and  47  to  corporations 
headquartered in the United States. 

As shown in Figure 20 below, the number of concessions awarded to foreign subsidiaries 
of non-EU firms  has  slightly increased over the recent  years. However, given the short 
period of time for which data are available following 18 April 2016, it seems premature 
to  draw  a  sustainable  trend,  especially  given  the  order  of  magnitude  of  the  overall 
figures. 

Figure 20: Indirect cross-border awards by the location of the global ultimate owner of the winning 
company (intra-EU and non-EU) – overview by years [number] 

40 

 
 
 
 
 
Source:  In-house  analysis  based  on  Official  Journal/Tender  Electronics  Daily  data  for  2016-2021, 
EU-27 and EEA. 

6. 

SECTORAL OVERVIEW – KEY SECTORS COVERED  

The  following  Chapter  presents  an  overview  of  the  sectors  in  which  the  Concession 
Directive has been applied. It focuses on selected key sectors, which were chosen either 
because  of  their  economic  significance,  or  specific  implementation  patterns  that  were 
judged worth highlighting in this report.  

Observations published in Tenders Electronic Daily during the 2016 to 2021 period are 
grouped into seven high-level clusters, each encompassing several Common Procurement 
Vocabulary codes74 of different levels75. The following high-level groups are used in the 
sectorial  overview  in  this  staff  working  document:  “Services  for  citizens”,  “Public 
utilities”,  “Environmental  services  or  works”,  “Construction  work”,  “Transport”, 
“Communication  and  IT  services”,  and  “Other”.  The  last  group  captures  all  remaining 
Common Procurement Vocabulary codes, not included in the other sectors. Based on the 
above taxonomy, Figure  21 below shows that the largest number of concession contracts 
awarded in 2016 to 2021 relates to the broadly understood “Services for citizens” (1 699 
contract award notices). Other sectors with an important number of concessions awarded 
are environmental protection (564 contract award notices) and “Transport” (553 contract 
award notices).  

Figure 21: Concession award notices by high-level sectors [number] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 and EEA 

When expressed in value, the concessions awarded in the “Public utilities” sector account 
for  the  largest  share  of  contracts  awarded,  with  nearly  EUR  200  billion  (see:  Figure  22 

74  A detailed list of Common Procurement Vocabulary codes allocated to each of the sectorial groupings is provided 

in the Annex (Table 10). 

75  The  main  Common  Procurement  Vocabulary  is  based  on  a  tree  structure  comprising  codes  of  up  to  nine  digits 
associated with a wording that describes the supplies, works or services  forming the subject of the contract. The 
numerical code consists of 8 digits, subdivided as follows: the first two digits identify the divisions (XX000000-Y), 
the first three digits identify the groups (XXX00000-Y), the first four digits identify the classes (XXXX0000-Y), 
the first five digits identify the categories (XXXXX000-Y). 

41 

 
 
 
 
                                                 
below). As already mentioned in section 5.3., when looking into details of data collected 
for  this  sector,  the  most  important  contribution  comes  from  “Electricity  distribution” 
contracts that were worth around EUR 175 billion.  

Figure 22: Concession award notices by high-level sectors [value in billion EUR] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 and EEA 

The  “Public  utilities”  sector  is  followed  by  “Transport”  and  “Construction  work”  with 
EUR 40.48 billion spent and EUR 36.72 billion spent, respectively.  

Taking into account the above distributions by number and value, the following sectors 
have been chosen for a more detailed analysis: 

 

 

 

“Services for citizens” with a particular focus on recreation, culture, sport and other 
local services; 

“Public services” with a particular focus on energy generation and supply; 

“Environmental services or works.” 

Recreation, culture, sport and other local services 

The  “Services  for  citizens”  sector  encompasses  a  broad  range  of  activities  of  public 
administrations  such  as:  restaurant  and  canteen  services,  recreational,  cultural  and 
sporting services, health and social work services, administration, defence, education and 
training services, fire-fighting, police and other security services.  

Figure 23 below shows that more than half of contract award notices published in this area 
in  2016  to  2021  originate  from  France  (53 %),  followed  by  Spain  (12.6 %)  and  Italy 
(11 %).  In  terms  of  value  of  concessions,  the  situation  is  similar:  France  (73 %)  is 
followed by Spain (11 %) and Italy (6 %). 

42 

 
 
 
 
Figure 23: Services for citizens [number; value] 

Source:  In-house  analysis  based  on  Official  Journal/Tender  Electronics  Daily  data  for  2016-2021, 
EU-27 

In  terms  of  direct  cross-border  propensity,  the  sector  is  dominated  by  domestic  awards 
(98 %),  as  shown  in  Figure  24  below.  Some  cross-border  awards  take  place,  however 
indirectly (15.7 %), with an equal share of contracts awarded intra-EU (8.4 %) and non-
EU (7.6 %). 

Figure 24: Services for citizens, direct cross border [number] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27. 

43 

 
 
 
 
Figure 25: Services for citizens, indirect cross-border [number] 

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 

When looking at the size of companies winning concession contracts in this sector, one 
can notice an increase in the share of SMEs since 2016, which may be associated with 
the introduction of the Concessions Directive. Yet the share of SMEs is lower than 60% 
which is the estimated share of SMEs winning in the overall procurement market. 

Figure 26: Services for citizens- SMEs [number] 

Source:  In-house  analysis  based  on  Official  Journal/Tender  Electronics  Daily  data  for  2016-2021, 
EU-27. 

44 

 
 
 
 
 
In  this  sector,  the  sub-sector  using  most  concessions  is  “Hotel,  Restaurants  and  Retail 
Trade  Services”,  within  which  most  awards  concern  catering  and  canteen  services  and 
“recreational,  cultural  and  sporting  services”.  As  evidence  in  the  London  Economics 
Europe and Spark Legal (2021) study, the yearly average number of concessions increase 
significantly relative to the pre-Concessions Directive situation, probably due to the fact 
that services concessions were not covered by specific EU legislation prior to 2016.  

Figure 27: Concession award notices related to recreational, culture and sporting services –focus on 
CPV division 55 [number] 

Source:  In-house  analysis  based  on  Official  Journal/Tender  Electronics  Daily  data  for  2016-2021, 
EU-27 and EEA 

Case study - Public service delegation for school and extracurricular catering for the City of 
Raincy (France)  

  Description  

In November 2021, the City of Raincy awarded a tender for the management by way of public 
service  delegation  of  the  school  and  extracurricular  catering  for  a  duration  of  60  months.  The 
catering  service  operates  on  the  principle  of  cold  connection,  the  sites  of  consumption  being 
equipped  to  receive,  restore  or  maintain  temperature,  and  serve  meals  made  in  advance  and 
delivered from a single production site with European health approval or a derogation from the 
approval. 

  Total value of procurement (excluding VAT) 

Lowest offer: 6 754 808.50 EUR / Highest offer: 8 131 337.95 EUR taken into consideration 

 

Information on value of the concession and main financing terms (excluding VAT) 

45 

 
 
 
 
Initial estimated total value of the contract/lot/concession: 6 500 000.00 EUR 

Total value of the concession/lot: 6 754 808.50 EUR 

  Award criteria 

Concession is awarded on the basis of the criteria described below: 

-  Price 
-  Quality of food supply 
-  Quality of the support offer  

Figure 28: Concession award notices related to recreational, culture and sporting services –focus on 
Common Procurement Vocabulary division 92 [number] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 and EEA. 

“Public services” - Energy generation and supply 

This  sector  includes  concessions  relating  to  electricity,  oil  and  gas  industry  and  public 
utilities. This is the largest sector in terms of total value of the concessions awarded as 
shown in Figure 22 above. 

France  accounted  for  three  quarters  of  all  concession  award  notices  published  in  the 
public utilities sector (244 out of 317) in 2016-2021. Germany followed suit with 13 % 
of contract award notices published in the same period. 

Case study: Germany – Wind energy concessions with zero subsidy  

46 

 
 
 
 
 
 
An example of good practices, in the application of the concession contract form, can be found 
in the wind generated electricity. 

In  2017,  the  German  authorities  awarded  two  companies,  namely  EnBW  and  Ørsted,  with 
contracts for four offshore wind projects totalling 1.49 GW, which notably resulted in successful 
bids to develop 1.38 GW of the amount without any form of state subsidy support. It became the 
first  offshore  wind  power  developers  to  acquire  concessions  at  unsubsidised  prices,  bidding 
prices  of  zero  euros  per  MWh  to  win  projects  in  German  waters,  which  also  constitutes  a 
landmark for the industry.  

The  Danish company  Ørsted  explained  its  possibility  to submit  a  zero-subsidy  bid  was  due  to 
different factors, namely:  

- 
- 
- 

the timeframe allowing for larger wind turbines to be deployed;  
the exclusion of grid connection cists from the bidding process;  
the possibility to extend operational lifetime of the wind farm for 30 years. 

The German example is an illustration of the fact that authorities do well in considering wider 
risks  for  the  success  of  concession  projects  than  those  strictly  linked  to  market  risk  or  the 
concessionaire’s  performance  risk.  In  the  case  of  offshore  wind,  there  is  significant  risk  in 
relation to the connection to the electricity grid. This risk is significant for the concessionaires’ 
revenues but is linked to grid infrastructure aspects that are wholly outside their control. 

Figure  29:  Concession  award  notices  related  to  public  utilities  -  focus  on  Common  Procurement 
Vocabulary group 653 (Electricity distribution) [value in billion EUR] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 and EEA 

Out of the public utilities, the vast majority of concessions (97 %), in terms of value are 
awarded  for  electricity  distribution  and  related  services  (Common  Procurement 
Vocabulary group 653). 

47 

 
 
 
 
 
Due  to  the  specificities  of  the  electricity  distribution  market  (legal  monopoly),  the 
majority  of  concessions  are  awarded  through  procedures  without  prior  publication  of  a 
contract  notice  justified  by  the  existence  of  special  or  exclusive  right  of  the  incumbent 
over the exploitation of the distribution network.  

As  shown  in  the  analysis76  of  all  contract  values  performed  by  London  Economics 
Europe and Spark Legal (2021) between 2016 and 2019, eight out of the top ten largest 
concession  contracts  in  terms  of  value  are  in  France  and  concern  development  and 
operation of electricity distribution networks and supply and are awarded in procedures 
without prior publication of a contract notice. 

Case  study:  Italy  –  Concession  for  design  and  execution  of  works  and  upgrading  of  public 
lighting systems  

The project consisted in design and execution of works and upgrading of public lighting systems 
together  with  management,  operation,  maintenance  and  supply  of  electricity  for  21 
municipalities in Italy. 

The  award  criteria  were:  the  quality  of  the  project,  the  economic  offer  and  the  quality  of  the 
management/operation. 

This project is an example of a concession in the electricity sector, where typically the tenders 
are  carried  out  without  prior  publication  of  a  notice  due  to  existence  of  special  or  exclusive 
rights. In this case however, in the absence of such exclusive rights, the concession was awarded 
following  an  open  call  for  tender,  which  received  three  offers  and  resulted  in  savings  for  the 
contracting  entity.  The  initial  total  estimated  value  of  the  concession  was  of  over  EUR  43 
million  and  the  concession  was  awarded  for  close  to  EUR  34.million,  generating  a  saving  of 
20 % of the initial estimated value.   

Case  study:  France  –  Motorway  construction  works  -  Concession  of  Centre-Europe 
Atlantique motorway between Sazeret et Digoin  

This  case  study  presents  a  tender  for  concession  for  works,  operation,  maintenance  and 
exploitation  of  a  motorway  which  attracted  a  high  number  of  tenderers  and  resulted  in 
considerable savings for the contracting authority.  

The  tender  required  the  design,  construction,  maintenance  and  exploitation  of  a  two  lanes 
motorway  and  the  adjoining  infrastructure  of  the  existing  section  of  RN  79  situated  between 
Grand Champ in Sazeret and Digoin (Saône-et-Loire) with a total length of 89 km. The works 
had to be realized without interruption of the traffic. 

Criteria for the award were: economic and financial robustness, the lowest toll perceived during 
the entire concession period, the level of service and quality of the maintenance, the technical, 
environmental and social quality criteria.     

Following a selection process based on a call for tenders followed by a negotiation phase, the 
contracting authority  signed the concession contract in March 2020 with the company ALIAE 
(Autoroute de Liaison Atlantique Europe). The financing of this project, of which the investment 
cost alone is estimated at EUR 548 million, was fully taken over by the concessionaire, without 

76  London Economics and Spark Legal (2021), page 92. 

48 

 
 
 
 
                                                 
any  public  subsidy.  The  construction  has  to  be  finalised  in  two  years,  and  the  duration  of  the 
concession is 48 years.  

The project is expected to create up to 1 200 jobs, with one third recruited locally and foresees 
30 % of subcontracting to be assigned to SMEs.  

The motorway will benefit from a free-flow toll technology contributing to the fluidification of 
traffic and reduction of CO2. The reading of the license plate or electronic toll badge by camera 
will  automatically  associate  the  passage  with  a  bank  transaction.  This  technology  is  already 
being used in Europe, but it will be used for the first time in France on this project.  

The initial total estimated value of the concession was of EUR 5.35 billion and the concession 
was  awarded  for  EUR  3.95billion,  generating  thus  a  saving  of  more  than  25 %  of  the  initial 
estimated  value. The tender generated a lot of interest as the contracting authority received 14 
offers, out of which 2 from outside the EU. 

Environmental services and works 

Figure 30 below shows that more than around 75 % of concessions in this sector between 
2016 and 2021, both in terms of number and in terms of value, were awarded by France. 
Czechia  accounts  for  almost  8 %  of  the  number  of  concession  awards  but  in  terms  of 
value  these  contracts  are  below  0.1 %  which  indicate  that  contracts  are  low  value 
concessions. Italy comes in third with almost 6 % of the number of concession awards, 
which represents 7.5 % in terms of value. 

Figure 30: Environment concessions by EU Member State [number; value] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27. 

49 

 
 
 
 
 
Case study: the Netherlands  – Sustainable large scale district collective heating and cooling 
system  

In July 2016, the municipality of Amsterdam published a tender for the design, construction and 
operation of an Energy Neutral Centre Island which was part of the expansion of the city. The 
term “energy neutral” signifies that the energy for heating and cooling for houses and additional 
facilities  had  to  be  generated  from  renewable  sources.  The  choice  has  been  made  to  supply 
energy-neutral heat and cold with thermal energy storage in combination with heat pumps. The 
concessionaire  had  to  design,  build,  manage,  maintain  and  operate  a  fully  functional 
heating/cooling facility at its own expense and risk. 

The dimensions of the Centre Island comprised of up to 1 500 houses, out of which 30 % were 
developed  by  project  developers  and/or  housing  corporations,  while  the  remaining  70 %  was 
self-built (individual self-built and collective self-built).  

The  procedure  used  was  negotiated  with  competition,  and  the  award  criteria  was  price (70 %) 
and quality (30 %). Invitation was sent to three tenderers and the concession contract was signed 
with  Eteck  in  June  2017.  The  duration  of  the  concession  is  of  30  years  and  was  considered 
crucial to ensure a profitable business case.  

This  project  is  a  successful  example  of  innovative  integrated  housing  and  sustainable  energy 
project carried out through a concession contract. The sustainable goal was to achieve housing 
climate  neutrality  by  phasing  out  natural  gas  and  promote  renewable  energy  and  circular 
economy. 

When looking at the size of companies winning concessions in this sector, it is noted that 
the  sector  is  clearly  dominated  by  large  companies  (around  80 %  of  concessions  go  to 
large companies). The share of SME awards is only around 20 % in terms of number of 
contracts which is considerably lower than their success rate (61 % in terms of number)77 
in the overall public procurement market.  

77  De Bas, P., Hausemer, P., Kruger, T., Rabuel, L., de Vet, J.M., Vincze, M.(2019) 

50 

 
 
 
 
                                                 
Figure 31: Environment, SMEs winning [number] 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 

Figure  32:  Number  of  concession  award  notices  related  to  environmental  works  and  services,  in 
2016-2021 

Source: In-house analysis based on Official Journal/Tender Electronics Daily data for 2016 to 2021, 
EU-27 and EEA. 

Case study: France – Vert-le-Grand refurbishment, operation and management of the waste 
incineration and treatment centre and related services  

51 

 
 
 
 
 
This  case  study  presents  a  concession  for  works,  operation,  maintenance,  and  renewal  of  an 
incineration and waste treatment centre based in Vert-le-Grand. The project notably includes an 
incineration centre and a sorting centre.  

More  precisely,  the  tender  specifications  required:  (i)  to  make  the  necessary  investments  to 
increase the performance of the existing incineration centre and make it more innovative with a 
reduction in its environmental impacts and compliance with regulations, and (ii) to increase the 
capacity  of  the  sorting  centre  with  a  view  to  reaching  a  capacity  of  70 000  tonnes  per  year, 
taking  into  account  the  implementation  of  selective  collections,  the  evolution  of  sorting 
standards  and  applicable  environmental  requirements.  The  works  had  to  be  undertaken  in  the 
first two years while keeping the centre fully functional during the works.  

Criteria for the award were: technical and environmental quality criteria; economic and financial 
quality criteria and quality of the exploitation service and of sustainable development. 

Today, the Centre of Vert-le-Grand contains an energy generation incinerator, a sorting centre of 
recyclable packaging and a glass unit. The entire centre was conceived under the imperative of 
respect  for  environment.  Overall,  the  investment  result  in  a  reduction  of  CO2  emissions  by 
25 000  tonnes  per  year  (or  the  contribution  of  a  700  ha  forest).  The  Centre  generates  its  own 
electricity and electricity for over 33 000 households as well as heating for 46 000 households.  

This project is a successful example of how tender procedure under the Directive can result in 
environment protection and savings for the taxpayer’s money. The initial total estimated value of 
the concession was of 782 000 000 EUR and the concession was awarded for 705 000 000 EUR, 
generating thus a saving of almost 10 % of the initial estimated value.  It is important to mention 
that in this saving is even more remarkable given that this is a tender with only one tenderer. 

7. 

SPECIFIC EXCLUSIONS IN THE FIELD OF WATER 

Water  is  a  public  good  of  fundamental  value  for  all  EU  citizens.  Water  policy  is 
inherently  complex  and  strongly  linked  to  domains  that  are  critical  for  development, 
including  health,  environment,  agriculture,  energy,  spatial  planning, 
regional 
development and poverty alleviation78. The water sector is regulated at national and EU 
level. 

At  EU  level  the  main  legislative  acts  concerning  drinking  water  are:  the  Directive 
2000/60/EC79  known  as  the  Water  Framework  Directive,  the  Council  Directive 
98/83/EC80    known  as  the  Drinking  Water  Directive  and  the  Council  Directive 
91/271/EEC81 known as the Urban Waste Water Treatment.  

78   “OECD Principles on Water Governance” Centre for Entrepreneurship, SMEs, Regions and Cities, Adopted by 

the OECD Regional Development Policy Committee on 11 May 2015. 

79  Directive  2000/60/EC  of  the  European  Parliament  and  of  the  Council  of  23  October  2000  establishing  a 

framework for Community action in the field of water policy OJ L 327 , 22/12/2000 p. 1 

Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, 

80 
OJ L 330, 5.12.1998, p. 32. 
81  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment OJ L 135, 30.5.1991, p. 

40. 

52 

 
 
 
 
                                                 
7.1. 

Societal considerations 

The Council of the EU adopted Conclusions on Water Diplomacy on 19 November 2018 
(Conclusions) recognising that water is a prerequisite for human survival and dignity and 
a  fundamental  basis  for  the  resilience  of  both  societies  and  the  environment.  Water  is 
vital  for  human  nutrition  and  health,  and  essential  for  ecosystem  management, 
agriculture,  energy  and  overall  worldwide  security.  Ensuring  sustainable  access  to  safe 
water  and  sanitation,  achieving  sustainable  water  management,  preventing  scarcity  and 
reducing  flooding  events  are  key  global  challenges  of  the  21stcentury82.  The  EU  is 
committed to  the human rights  to  safe drinking  water  and sanitation, as  components of 
the  right  to  an  adequate  standard  of  living.  The  EU  recognises  that  the  human  right  to 
safe drinking water entitles everyone, without discrimination, to have access to sufficient, 
safe,  acceptable,  physically  accessible  and  affordable  water  for  personal  and  domestic 
use. 

The  Right2Water83  is  a  citizens’  initiative  which  gathered  2  million  signatures  (the 
highest  number  of  signatures  collected).  The  initiative,  which  was  received  by  the 
Commission on 20 December 2013, demanded that (a) the EU institutions and Member 
States be obliged to ensure that all EU citizens enjoy the right to water and sanitation; (b) 
that  the  water  supply  and  management  of  water  resources  not  be  subject  to  ‘internal 
market rules’ and that water services are not subjected to liberalization; and (c) that the 
EU increases its efforts to achieve global access to water and sanitation. 

7.2.  Economic considerations 

From  an  economic  perspective,  it  is  widely  recognised  that  water  is  a  highly  capital-
intensive  sector,  with  important  market  failures  which  require  some  additional  co-
ordination  or  State  involvement.  They  include  the  following:  (i)  the  essential  nature  of 
water may make it ethically indefensible to make consumption exclusive; (ii) investments 
in  pipeline  networks  offer  distant  and  risky  paybacks  but  immediate  and  wide-ranging 
benefits;  and  (iii)  the  scale  of  the  sunk  investments  may  make  the  resulting  "natural 
monopoly" virtually non-contestable. Even  an efficient naturally monopolistic operator, 
offering water to urban centres as well as remote rural locations, will be unable to defend 
itself  against  focused  entrants  allowed  to  cherry-pick  some  unbundled  service  and 
undercut  the  incumbent's  average  price84.  The  recognition  of  societal  significance  and 
prevention of market  failures in  the water sector has led to  the special treatment  in  the 
Concessions Directive. 

7.3.  Exclusion in the field of water 

Recognizing complex arrangements that may be required given the importance of water 
as a public good, the Concessions Directive envisages a special exclusion in this field, as 
specified  in  Article  12.  The  Concessions  Directive  shall  not  apply  to  the  following 
concessions awarded by a contracting authority or entity:  

82   https://www.consilium.europa.eu/media/37022/st13991-en18.pdf  
83   https://right2water.eu/  
84   Boscheck, R. (2002), page 141. 

53 

 
 
 
                                                 
 

 

all  concessions  the  subject  matter  of  which  is  the  provision  or  the  operation  of 
networks, if these networks are intended to provide a service to the public, and are 
connected with production, distribution or transport of water; 

all concessions the subject matter of which is the supply of water to the networks 
meeting the above-mentioned conditions.  

The Concessions Directive shall also not apply to certain concessions the subject matter 
of  which  is  the  disposal  or  treatment  of  sewage,  notably  to  those  which  are  connected 
with the provision or the operation of the above-mentioned networks or with the supply 
of water to such networks.  

Finally,  the  Concessions  Directive  shall  not  apply  to  concessions  the  subject  matter  of 
which are hydraulic engineering projects, irrigation or land drainage which are connected 
with the provision or the operation of the above mentioned networks or with the supply 
of water to such networks provided that the volume of water to be used for the supply of 
drinking water represents more than 20 % of the total volume of water made available by 
such projects or irrigation or drainage installations. 

The  exclusion  covers  works  and  services  concessions  and  was  not  transposed  by  all 
Member  States.  Figure  33  below  presents  the  number  of  countries  and  their  decisions 
concerning the transposition of Article 12. 

Figure 33: Coverage of the water sector by the Directive (transposition of Article 12), by number of 
Member States  

Source: Based on questionnaires submitted by Member States to DG GROW. 

As presented above, three Member States (Czechia, Poland and Romania) decided not to 
transpose  Article  12  and  hence  fully  cover  the  water  sector  by  the  provisions  of  the 
Concessions Directive, and other three Member States (Bulgaria, France and Spain) did 
so partially. The remaining 21 Member States have transposed Article 12 and therefore 
do not apply the Concessions Directive to the water sector.  

The  organisation  of  water  services  is  a  matter  of  national  competence.  A  widely  used 
taxonomy elaborated by van Dijk and Schouten (2009) and presented below: 

54 

 
 
 
 
 

 

 

 

Direct  public  management:  the  responsible  public  entity  is  entirely  in  charge  of 
service provision and their management.  

Delegated  public  management:  a  management  entity  is  appointed  by  the 
responsible  public  entity  to  execute  the  management  tasks.  Management  entities 
usually remain publicly owned, although in some cases, there is the possibility of a 
minor private shareholding.  

Delegated  private  management:  the  responsible  public  entity  appoints  a  private 
company  to  manage  tasks,  on  the  basis  of  a  time-bound  contract  in  the  form  of 
lease  or  concession  contract.  The  ownership  of  the  infrastructure  remains  in  the 
hands of public authorities.  

Direct  private  management:  under 
tasks, 
responsibilities and ownership of water utilities are placed in the hands of private 
operators, while public entities limit their activities to control and regulation. 

this  system  all  management 

As  evidenced  below,  Member  States  have  obviously  chosen  to  apply  various 
management  models  for  the  provision  of  water  and  services,  depending  on  the  specific 
characteristics  and  framework  within  which  it  operates  as  well  as  the  different  mix  of 
advantages each model offers. As can be observed in Figure 34 below, 16 Member States 
have declared that more than one managerial model is being used. 

Figure 34: Managerial models in the water sector 

Notes: dark blue field – the model is applied in a country, shares in yellow - data on drinking water 
only  (not  water  output);  shares  in  white  -  data  on  the  overall  sector.  Source:  Questionnaires 
submitted by Member States.  

The  following  comments  received  from  Member  States  mainly  as  part  of  the  survey 
provides examples of the diversity of the management models within the Member States, 
depending on regional or local characteristics: 

 

 

Belgium: In Belgium, the water sector is under the management of the regions. In 
Flanders,  water  services  are  entirely  under  the  delegated  public  management 
model. In Wallonia, the predominant system is delegated public management with 
a small private shareholding for the company responsible for wastewater treatment 
coordination.  In  Wallonia  for  individual  wastewater  treatment  the  predominant 
model  is  direct  private  management.  Last,  in  Brussels,  the  model  is  mostly 
delegated  public  management,  except  for  the  treatment  of  wastewater  where  the 
model is delegated private management. 

Bulgaria: The activities related to the management, maintenance and operation of 
the water sector as well as the provision of services to the consumers are awarded 
by  the  Water  Supply  and  Sewerage  associations  or  municipal  councils  by 
concluding a contract in accordance with the Water Act or the Concession Act.  

55 

Management modelDirect public7%<1%10%70%33%Delegated public*25%64%*57%30%*52%85%Delegated private*59%35%33%*15%15%Direct private9%**Mixed model***ATBEBGCYCZDEDKEEELESFIFRHUHRIEITLVLTLUMTNLPLPTROSISKSE85% 
 
 
 
 

 

 

 

The  management  model  for  the  water  sector  in  Bulgaria  is  mixed.  Most  of  the 
country has a delegated public management model, except for the Municipality of 
Sofia which has a delegated private model for the management of the water sector. 

Denmark:  Since  2016  in  Denmark  there  is  a  mixed  model  management  for  the 
water sector composed of private management and delegated public management. 
For  the  private  management,  there  are  around  21 000  consumer-owned  water 
service providers, while for the delegated public management there are around 140 
publicly owned limited companies responsible for water services, and around 110 
publicly owned limited companies responsible for wastewater services.  

Finland:  In  Finland,  according  to  the  Water  Service  Act,  municipalities  are  in 
charge of the general development of the water sector in their area. Within the 309 
municipalities, there are one or more utilities providing water services in each area. 
The predominant management model is direct public management. Municipalities 
are  in  charge  of  provision,  production  and  management  of  water  services.  About 
70 %  of  the  municipal  water  utilities  are  organised  as  municipal  entities  or 
municipal  enterprises  under  the  direct  administration  of  the  municipality.  Lately 
Finland  has  moved  slightly  from  direct  public  management  towards  delegated 
public management. Approximately 30 % of municipally owned water utilities are 
organised as companies. They have their own administration, but they are usually 
owned  by  the  public  sector,  that  is  by  municipalities.  Additionally,  Finland  has 
over 1 000 (small) co-operatives, especially in sparsely populated areas, which are 
managed  by  consumers.  These  co-operatives  can  be  mentioned  as  examples  of 
direct  private  management  in  water  sector.  Finland  is  currently  working  on  a 
national  water  services  reform.  The  Finnish  Parliament  is  addressing  a  citizens’ 
initiative requiring a ban on the privatisation of water services. This could lead to 
strengthening the role of municipalities in water services provisions. 

France: The management and regulation of the water sector are two tasks carried 
out  by  the  municipalities  and  inter-municipal  structures  in  France.  The  choice  of 
management method is characterized by the principle of freedom of administration 
for  municipalities.  Municipalities  may  choose  between  direct  public  management 
(régie) or to entrust the management to a third party, selected in the framework of 
public  tendering  processes,  through  a  concession  or  public  service  delegation 
(gestion déléguée). Thus, France has a mixed management model. In the delegated 
management  the  performance  of  activities  in  the  water  sector  is  entrusted  to  an 
operator  for  a  period  no  longer  than  20  years.In  2017,  30 %  of  drinking  water 
services in France were provided under delegated management, compared to 70 % 
under direct management. During the same year the sanitary services were at 23 % 
by delegated management and compared to 77 % under the direct management. 

Greece:  The  main  model  for  water  management  in  Greece  is  delegated  public 
management. The Greek State delegated two public companies: E.Y.D.A.P. SA for 
Athens, and E.Y.A.T.H  SA for Thessaloniki to providing water services. In those 
two cities, the delegation of water management is of a special type. The two public 
companies have been listed in the stock market for 20  years, and the Greek State 
has  always  been  the  main  shareholder.  The  Law  1069/1980  mandates  delegated 
public management in cities with more than 10 000 inhabitants; while in cities with 
less  than  10 000  inhabitants,  the  management  model  is  usually  direct  public 
management.  In  these  cities,  the  municipality  is  the  responsible  public  entity  in 

56 

 
 
 
 

 

charge of water services provision. By law, every municipality can only have one 
operator providing water services within that municipality. 

Italy: The water sector structure in Italy is shaped by the Galli law (Law 36/1994) 
enacted  as  a  response  to  resolve  the  critical  situation  concerning  inadequate 
wastewater  collection  and  treatment  systems.  Its  implementation  called  for  the 
management of optimal areas of operation (Ambito Territoriale Ottimale) under the 
direction of a local municipal authority. The optimal areas of operation are defined 
at  the  regional  level  (at  the  present  there  are  62  of  them)  and  can  delegate  the 
management  of  water  and  wastewater  services  to  either  public  enterprises,  where 
private  participation  is  not  allowed  (in-house  operators),  mixed  public-private 
enterprises, where generally the public has the majority of shares, or purely private 
enterprises  by  means  of  a  tender.  Water  services  are  locally  provided  in  48 %  of 
cases  by  in-house  operators;  in  29 %  of  cases  by  joint-stock  company,  of  which 
12 % are in the stock exchange; in 2 % of cases by private concessionaires; and in 
the remaining cases, mainly located in South and Central Italy, the water services 
are  directly  managed  by  municipalities.  In  Italy,  there  are  different  managing 
systems  for  water  services.  About  half  of  the  population  is  served  through  the 
delegated public management model. Public Private Partnerships cover 36 % of the 
population;  concessions  cover  5 %  of  the  population;  municipalities  directly 
provide water services to the remaining share of the population.  

The  Netherlands:  The  Netherlands  differentiates  between  drinking  water  sector, 
and sanitary services sector. In the drinking water sector, the Netherlands adopts a 
delegated public management model. Drinking water companies are 100 % owned 
by local and/ or regional governments. By contrast, for other sanitary services, the 
Netherlands  adopts  a  direct  public  management  model.  Within  the  direct  public 
management  model,  the  municipalities  are  responsible  for  the  collection  and 
draining of storm water. Regional water authorities are responsible for purification 
of wastewater, groundwater management, and regional water system management. 
Lastly,  the  national  government  is  responsible  for  national  water  system 
management. 

The participation of the private sector in public utilities seem to have been promoted in a 
number of countries due to some expected benefits, such as improved service quality and 
efficiency,  improved  management  efficiency  (easier  access  to  capital  markets).  Public 
involvement  remained  nevertheless  important  to  cater  for  wider  societal  needs  and 
quality standards. 

Case  Study  –  Position  Paper  of  German  Association  of  Energy  and  Water  Industries 
(BDEW), and the German United Services Union (Ver.di) –Exemption of the water sector as a 
permanent solution 

In  Germany,  securing  the  drinking  water  supply  falls  under  the  principle  of  local  self-
government.  Germany  does  not  apply  the  Concession  Directive  2014/23/EU,  but  still  shows  a 
heterogenic  picture  of  competition  in  the  water  sector,  where  the  quality  of  water  supply  is 
increasing, according to the Position paper85. In Germany, each supplier is responsible for local 
network  infrastructure  to  fulfil  hygiene  requirements  and  quality  standards  towards  end 

85 BDEW and Ver.di, Exception of the water sector as a permanent solution, Position Paper 

57 

 
 
 
                                                 
customers.  The  local  networks  are  limited  to  one  or  few  municipalities  and  suppliers  can 
continuously adapt their own network to customer needs86. 

The  German  Association  of  Energy  and  Water  Industries  (BDEW)  and  the  German  United 
Services Union (Ver.di), maintain that the initiative “Right2Water” has shown that people in the 
European Union consider water as special good  and reject obligatory competition in the water 
sector87.  

It is argued that complex tenders are cost-intensive and would have to be financed through water 
prices or charges, which in turn would affect the most vulnerable customers without providing a 
better  or  safer  service88.  Further  to  that,  the  application  of  the  Directive  is  perceived  as 
problematic  for the  functioning  of  structures  for  municipal  water  as  would  entail  considerable 
transaction costs for renewal of concessions89.  

Accordingly, the Position paper concludes that the application of the Directive is not necessary 
in  Germany  as  the  sector  already  works  efficiently  under  another  legal  framework:  German 
jurisprudence  and  laws  ensure  transparency  and  non-discrimination,  as  well  as  provides  for 
effective legal remedies.  

Stakeholders’ views 

When  asked  about  the  main  effects  of  the  water  exclusion  both  positive  and  negative 
during the stakeholders’ event, most of stakeholders voiced their strong position that the 
systems  works  well  and  the  exclusion  shall  be  maintained.  On  the  other  hand, 
representatives of the business sector explained their positive experiences brought about 
by  the  Directive.  Overall,  it  was  agreed  that  there  is  “no  one-size  fits  all”  solution  and 
generalisations  shall  be  avoided.  The  choice  of  management  system  is  contextual 
depending  on  local  societal  objectives  (operating  efficiency,  long-term  investment, 
affordability, water conservation, security of supply, public health etc).  

As regards, the key principles of an efficient organisation of the water sector, participants 
in  the  event  indicated  in  the  first  place  the  water  sector  exemption  followed  by  public 
(local) ownership and  by transparency. 

On  the  question  on  the  optimal  management  model,  direct  public  and  delegated  public 
management  models  accounted  for  two  thirds  of  the  votes  in  the  event  survey,  while 
delegated private and direct private accounted for one third. 

Private sector involvement in the water sector was considered important for only half of 
the  participants  in  the  vote/survey,  with  one  third  of  voters  indicating  that  the 
involvement  is  not  at  all  important  (score  1  out  of  a  1  to  10  scale).  During  the 
discussions,  most  participants  reiterated  that  involvement  of  private  sector  is  not 
considered necessary, and to that effect examples of re-municipalisation of water services 
were mentioned. 

86 BDEW and Ver.di, Exception of the water sector as a permanent solution, Position Paper. 
87 BDEW and Ver.di, Exception of the water sector as a permanent solution, Position Paper. 
88 BDEW and Ver.di, Exception of the water sector as a permanent solution, Position Paper. 
89 BDEW and Ver.di, Exception of the water sector as a permanent solution, Position Paper. 

58 

 
 
 
 
                                                 
Long-term  investment  was  considered  key  by  stakeholders,  as  infrastructure  requires 
large  continuing  investments  to  remain  effective.  The  following  risks  may  appear 
depending  on  ownership/management  models:  in  a  publicly  owned  system,  decision 
makers may choose prices below long-run average costs to win votes or they may restrict 
funding to meet overall government borrowing targets, while in privately owned systems 
firms  might  choose  high  dividends  over  maintenance  and/or  politicians  might  regulate 
prices below long-run average costs (a form of expropriation). 

Interestingly,  as  regards  SMEs,  it  was  explained  that,  in  Germany  existing  national 
framework  ensured  that  the  special  position  of  SMEs  is  given  through:  proportionate 
selection  criteria,  allowing  for  bidding  consortium,  not  prohibiting  of  reliance  on  the 
capacities of other entities and no self-fulfilment rate. As a result, SME represent the vast 
majority of the more than 6 000 water supply companies in Germany. 

7.4.  Key figures about the sector 

The EU water industry supplies drinking water to 447 million Europeans while adhering 
to  the  highest  water  quality  and  environmental  standards.  According  to  Structural 
Business  Statistics  data  of  Eurostat,  nearly  15  500  enterprises  are  active  in  the  water 
collection, treatment  and supply and  11 000 in  sewerage  in  EU-27.  Based on the latest 
available data, the annual turnover was roughly EUR 52.2 billion and EUR 23.6 billion 
for  each  of  the  two  sectors.  Companies  active  in  the  two  sectors  employed  roughly 
446 000 people.  

Companies  active  in  the  sector  represent  various  types  of  the  global  ultimate  owners90. 
As  the  list  features  the  largest  companies,  the  ownership  by  public  authorities  or 
corporate prevails.  Nonetheless,  the situation across  the  water sector  in  general  may be 
different as evidenced by the following table. 

Figure 35: Global ultimate owners of medium-size and large companies active in the water sector in 
EU-27, by type [number of companies] 

90  The  methodology  for  the  identification  of  the  Global  Ultimate  Owners  by  Orbis  BvD  is  provided  in  the  Annex 
(section  6.1.3).  The  minimum  percentage  of  control  in  the  path  from  a  subject  company  to  its  Ultimate  Owner 
chosen for the presented analysis was 50.01 %. 

59 

 
 
 
                                                 
Source: Orbis BvD (uploaded on 18/01/2022) 

Out  of  companies  listed  in  Orbis  BvD  database,  generally  middle-size  and  large 
companies;  the  main  type  of  ultimate  owners  in  the  sector  were  still  public  authorities 
and  governments  (nearly  45 %  of  all  non-missing  observations91).  This  concerned  all 
utilities  run  by  local  governments,  such  as  Stadwerke  in  Germany,  miejskie  or  gminne 
zakłady komunalne in Poland, or for example kommunalförbund in Sweden. The second 
most  frequent  type  of  owner  was  corporate  (36 %),  followed  by  individuals.  Finally, 
2.1 % of observations related to financial markets investors92. 

As  far  as  the  location  of  Global  Ultimate  Owners  of  firms  operating  in  the  sector  is 
concerned, the vast majority of them is domestic. When looking again at middle-size and 
large enterprises with main activity in NACE Rev.2 E36.0 or E37.0 (4 822 firms), 5.7 % 
of them (273) had global ultimate owners which were not domestic (i.e. not equal to the 
country  of  registration  of  the  company  in  question).  Figure  22  below  presents  the 
location of the Global Ultimate Owners (the right-hand side of the nodes on the graph) of 
these 273 companies. The country of the firm active in the water sector is presented on 
the left-hand side of the nodes. The larger the node is, the more companies are concerned 
by  an  ownership  relation  between  a  particular  pair  of  countries.  For  example,  44 
companies in Spain are owned by Global Ultimate Owners located in France. The second 
largest node links France and Luxembourg, where 32 French middle-size or large utility 
companies are owned by investors registered in the Grand Duchy. Sweden is the location 
of Global Ultimate Owners which own eight companies in Germany, six in Norway and 
five  in  Denmark,  whereas  eight  Irish  middle-size  or  large  water  companies  have  their 
global headquarters in the United Kingdom. 

91  In  the  used  dataset  of  middle-size  or  large  companies  active  in  the  drinking  water  or  sewerage  sectors  907 
companies  (hence  18.8%)  contained  no  information  about  the  type  of  their  GUO.  Figure  23  is  based  on  the 
remaining 3’915 observations. 

92  This group encompasses the following categories used in Orbis BvD: “Financial company", "Private equity firm", 

"Mutual and pension fund, nominee, trust, trustee".  

60 

 
 
 
 
                                                 
Figure  36:  Location  of  non-domestic  global  ultimate  owners  of  medium-size  and  large  companies 
active in the water sector in EU-27 and EEA [number of companies] 

Source: Orbis BvD (uploaded on 18/01/2022) 

Based on the above overview of middle-size and large companies, one can conclude that 
although  the  majority  of  companies  active  in  the  water  sector  are  owned  by  public 
authorities or governments, certain degree of foreign ownership is present on the market. 
This  happens  especially  through  cross-border  integration  within  large  corporate  groups 
active in the Internal Market.  

7.5. 

Private sector participation in the water sector 

As  for  any  concession,  the  transfer  of  rights  to  operate,  maintain  and  carry  out 
investments in a public utility can also occur in the field of water. As in any other sector, 
private  involvement  in  the  water  sector  can  therefore  follow  different  scope,  duration, 
remuneration patterns and various levels of risk transfer. 

Historically,  the  involvement  of  private  operators  in  this  sector  is  not  new,  as  various 
forms  of private participation  has  been observed  across many  European  countries since 
several  decades.  For  example,  lease  contracts  and  management  contracts  in  the  water 
sector  have  been  particularly  frequent  in  France  (locally  referred  to  as  “affermage”)  or 
Spain. According to  GWI WaterData93,  the  first  contracts  of such type  were concluded 

93  The GWI Global Ultimate Owners database contains details of municipal water and wastewater treatment projects 
where all or part of the capital investment cost was borne by the private sector. It also contains lease and affermage 
contracts,  where  these  cover  an  entire  utility  system.  Dams,  flood  prevention,  stormwater  drainage,  irrigation, 
surface  water  remediation  and  raw  water  transfer  projects  are  not  included,  as  they  fall  outside  our  scope  of 
coverage.  Some  minimal  thresholds  for  including  water  treatment  projects  were  applied  in  the  database  (e.g.  a 
population  served  of  10 000).  Selected  bulk  water  conveyance  and  sludge  treatment  projects  have  also  been 

61 

 
 
 
 
                                                 
 
already in the 19th century. For example, a 60-year concession to supply water to the city 
of Alicante was granted in 1893 and water supply to the city began in 1898. The typology 
of  private  sector  participation  models  in  the  water  sector  based  on  GWI  WaterData 
definitions is provided in Table 11 in the Annex94.  

The evolution in the number of contracts involving private operators in Europe95 can be 
illustrated  using  the  GWI  WaterData  database,  which  contains  373  projects  concluded 
between  1890  and  2019.  The  overall  number  of  contracts  involving  private  partners 
increased significantly starting  from  the  1980s  (344 contracts  out  of 373  recorded after 
1980).  When  looking  into  the  exact  contract  types  concluded  in  this  period,  the 
concessions clearly dominate (211 contracts out of 344), followed by affermage (82) and 
then build-operate-transfer (50).  

Figure  37  below  shows  the  interchanging  shares  in  the  type  of  private  participation 
contracts in the water sector over the last four decades. 

Figure 37: Number of contracts involving private participation in the water sector in Europe in 1980 
to 2019, by contract type and year  

Source: GWI WaterData (uploaded on 13/01/2022)  

When it comes to contract duration, agreements lasting for up to 30 years dominated the 
water market (see Figure  38 below). Nonetheless, the GWI WaterData database recorded 

included where private finance is involved. This database does not include projects treating industrial wastewater 
or raw water for industrial use, except in the case where the feedwater is municipal wastewater. For further details, 
please consult the database provider – GWI WaterData (source: www.gwiwaterdata.com).  

94  Build-Transfer projects, where private sector investors fund an asset during the construction stage but transfer it to 
the public sector upon completion, have not been included because they do not represent a long-term transfer of 
financing risk to the private sector. Build-Transfer-Operate and Build-Transfer-Lease projects have, however, been 
included  because  they  represent  a  long-term  outsourcing  of  infrastructure  management  to  the  private  sector. 
Privatised  or  part-privatised  utilities,  where  there  is  no  fixed  end  date  for  private  sector  involvement,  are  not 
included within this database. Source: www.gwiwaterdata.com. 

95  www.gwiwaterdata.com ; the private sector participation data is available only for the following eighteen countries 
of  EU27:  Austria,  Belgium,  Bulgaria,  Croatia,  Cyprus,  Czechia,  France,  Germany,  Greece,  Hungary,  Italy,  the 
Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain. 

62 

 
 
 
 
                                                                                                                                                 
two contracts with a duration of nearly 100 years (not shown on the figure as such long 
lasting contracts were usually the historic ones, concluded before the analysed period of 
1980  to  2019).  The  data  below  however  only  covers  the  initial  duration  of  the 
concessions,  and  do  not  include  contract  extensions,  which  means  that  many  of  the 
recorded contracts could have a longer duration. 

Figure  38:  Number  of  contracts  involving  private  participation  in  the  water  sector  in  Europe  in 
1980-2019, by contract duration  

Source: GWI WaterData (uploaded on 13/01/2022) 

The  role  and  economic  importance  of  the  various  actors  involved  in  the  sector  can  be 
assessed by looking at the percentage of the populations served by the different types of 
utilities operating in the sector.  

Figure 39 : Population served by different types of utilities in the drinking water sector in selected 
European countries [in million] 

Source: based on GWI Water data (uploaded on 13/01/2022) 

63 

 
 
 
 
 
As shown in Figure 26 above, GWI WaterData utilities data confirms the predominance 
of  the  public  ownership  structure  in  the  water  sector  in  Europe  -  public  companies 
supplied  drinking  water  to  roughly  two  third  of  people  served  by  the  companies  for 
which data was collected (i.e. nearly 211 million of Europeans used the services of public 
operators  recorded  in  the  database).  Another  71  million  people  used  water  supplied  by 
firms that concluded a concession agreement (nearly 22 %).  

Case Study – Water Sector in Portugal  

This  case  study  presents  a  comparative  assessment  of  the  water  sector  in  Portugal  focused  on 
private and public involvement. It is based mainly on three different reports: the Deloitte study96, 
the PENSAAR report97, and the report of the Regulatory Entity for Water and Waste Services 
(“ERSAR”).  

Portugal is one of the 21 countries among the Member States that has transposed Article 12 of 
the Concession Directive 2014/23/EC, and therefore does not apply the Concessions Directive to 
the water sector. The water sector in Portugal is characterised by different management models, 
and the services are provided either by public entities or private companies98. In Portugal, three 
management models coexist: a) direct public management, b) delegated public management and 
c)  delegated  private  management99.  The  management  of  the  systems  includes  municipalities, 
associations of municipalities, municipal and inter-municipal undertakings, public undertakings 
(including  concessionaires),  private  concessionaires  and  private  undertakings  providing 
management services100. 

Private concessions are allowed under Portuguese law101. The PENSAAR report recognises their 
contribution to the Portuguese economy as significant, and generally as a tool that can contribute 
to various objectives, such as efficiency gains, cost optimisation, human resource empowerment, 
internationalisation of the sector and job creation in the private sector102. In addition, the Deloitte 
study  of  the  water  sector  in  Portugal  presents  advantages  and  disadvantages  for  each 
management  model,  showing  however  that  the  private  sector  performs  slightly  better  than  the 
public  sector.  Some  of  these  findings  of  the  Deloitte  report  are  confirmed  by  the  PENSAAR 
report and by the 2020 ERSAR report. The following elements are highlighted by the reports:  

  Poor performance of a large number of water sector operators. The PENSAAR report 
found that more than 50 % of the operating entities had unsatisfactory assessments103;  
  For the rehabilitation of pipelines and collectors, the public sector presents better results 
than the private sector, nevertheless, both have an unsatisfactory service quality104 ; 
  The regulatory authority reports high-level standards for quality water.105 However, the 
Deloitte study reports that the private sector presents a better drinking water quality as 
well as a better fulfilment of the discharges license than the public sector106 ; 

96 Deloitte study, ‘Relatório final l Advisory Regulação de Serviços de Águas AEPSA - Associação das Empresas Portuguesas para o 

Setor do Ambiente’ (2019). 

97 PENSAAR is a monitoring Commission set up by Order No 9304/2013 of July 02 of the Secretary of State for the 
Environment  and  Spatial  Planning.  The  Monitoring  Commission  was  set  up  to  draw  up  the  plan 
‘PENSAAR 2020 — A new strategy for the water supply and sanitation sector’. 
98 ERSAR Report 2020, CARATERIZAÇÃO DO SETOR DE ÁGUAS E RESÍDUO, Volume 1, 409-410.  
99 EurEau Report (2018): ‘The governance of water services in Europe’. ERSAR Report 2020, CARATERIZAÇÃO DO SETOR DE 

ÁGUAS E RESÍDUO, Volume 1, 55-57.  

100 ERSAR Report 2020 Volume 2, CONTROLO DA QUALIDADE DA ÁGUA PARA CONSUMO HUMAN 2020, Prefacio, 3. 
101 Decree-Law 194/2009 amending Decree-Law No. 379/93 of 5 November and Decree-Law No. 207/94 of 6 August and Decree-

Law No. 147/95 of 21 June. The Decree-Law has been amended by Law no. 12/2014 of 5 march 2014.  
102 PENSAAR 2020, ‘A strategy for the service of population: quality services at sustainable price’ Recital 14. 
103 ibid Recital 43, Recital 224.  
104 ibid 37. 
105 ERSAR Report 2020 Volume 2, CONTROLO DA QUALIDADE DA ÁGUA PARA CONSUMO HUMAN 2020, 13-14.  

64 

 
 
 
                                                 
  The private sector has satisfactory and higher answering rates than the public sector in 

the customer support system, both in water supply and sanitation sectors107;  

  The private sector presents less failures in supply and floods than the public sector, 
nevertheless both sectors present unsatisfactory results when floods occur108; 

  Considering the water losses as an important environmental indicator, the private sector 

offer a good service, while the public sector presents unsatisfactory results109; 

  The public sector presents better accessibility and affordability indicators, although the 

private sector presents satisfactory values110.  

The information presented by the several reports in this case study show a mixed picture for the 
water sector in Portugal. On the one hand, private operators in Portugal are seen as a strength of 
the sector111; on the other hand, public operators while a bit underperforming compared to the 
private sector, still have their strengths.112 An exact conclusion on the functioning of concessions 
in Portugal appears therefore very difficult to determine. 

7.6. 

Impact of the Directive on the water sector 

This  section  focuses  on  impacts  that  the  Concession  Directive  might  have  had  on  the 
water sector and the internal market, depending on Member States’ choices made during 
its transposition. Whenever feasible, the discussion on differences between water sector 
organisation  across  the  EU  will  be  complemented  by  data  on  outputs  linked  to  the 
transposition  choices  made113  or  differences  between  the  ownership  models  that  are 
present on the market. 

Based on GWI WaterData historical data on the water sector (see Chapter 7.5), countries 
that  have  decided  to  apply  the  Concession  Directive  in  the  field  of  water  have  already 
had significant experience with similar public private partnerships projects in the past. As 
shown in Figure 40 below, around 70 % of private sector participation projects recorded in 
the  GWI  WaterData  database  took  place  in  Member  States,  where  the  water  sector  is 
either fully covered by the provisions of the Concession Directive or covered partially.  

Figure  40:  Number  of  contracts  involving  private  participation  in  the  water  sector  in  Europe  in 
1890-2019, by country transposition of Article 12 

106 Deloitte study, ‘Relatório final l Advisory Regulação de Serviços de Águas AEPSA - Associação das Empresas Portuguesas para o 

Setor do Ambiente’ (2019) 33. 

107  ibid  34.  PENSAAR  2020,  ‘A  strategy  for  the  service  of  population: quality  services  at  sustainable  price’  volume  1,  Recital  43. 
PENSAARP 2030 ‘Strategic plan for the water supply sector and waste and rainwater management’ volume 1, pp. 15-16. 
108 Deloitte study, ‘Relatório final l Advisory Regulação de Serviços de Águas AEPSA - Associação das Empresas Portuguesas para o 

Setor do Ambiente’ (2019) 35. 

109 ibid 36. 
110 Deloitte study, ‘Relatório final l Advisory Regulação de Serviços de Águas AEPSA - Associação das Empresas Portuguesas para o 
Setor do Ambiente’ (2019) 38. PENSAAR 2020, ‘A strategy for the service of population: quality services at sustainable price’ 
volume  1,  Recitals  282-285,  Recital  43.  ERSAR  Report  2020,  CARATERIZAÇÃO  DO  SETOR  DE  ÁGUAS  E  RESÍDUO, 
Volume 1, 390. 

111 PENSAARP 2030 ‘Strategic plan for the water supply sector and waste and rainwater management’ volume 1, Table 2.5, 16.  
112 To improve municipally owned managing entities, the 2030 PENSAAR report refers as a strategic objective to transition to more 
specialized entities with business-model-like organs, see PENSAARP 2030 ‘Strategic plan for the water supply sector and waste 
and rainwater management’ volume 1, p 68. 

113  The  clusters  of  countries  were  defined  in  section  7.3,  according  to  the  replies  received  in  the  Member  States 
survey,  notably:  countries  that  have  applied  the  exemption  foreseen  in  Article  12  (i.e.,  “Water  sector  covered  – 
No”); countries that partially applied the exemption foreseen in Article 12 (i.e., “Water sector covered – Partially”); 
countries that have not applied the exemption foreseen in Article 12 (i.e., “Water sector covered – Yes”). 

65 

 
 
 
 
                                                                                                                                                 
Source: GWI WaterData (uploaded on 13/01/2022) 

Experience  in  public  private  partnerships  might  have  influenced  the  Members  States 
decision on whether or not to cover the sector by the common EU rules on concessions. 
Interestingly, countries  which have decided that the water sector should not be covered 
by  the  Concession  Directive  included  countries  that  had  quite  an  extensive  experience 
with private sector participation, such as Italy (45 projects), Portugal (28) and Germany 
(11). 

Water concessions awarded under the Directive 

Since  18  April  2016  –  the  transposition  deadline,  225  concessions  award  notices  were 
published in Tenders Electronic Daily informing about the award of concession contracts 
in  the  water  sector114.  As  shown  in  Figure  28  below,  between  2016-2021  the  vast 
majority  of  these  contracts  were  concluded  by  French  contracting  authorities  (194 
observations  or 86.2 %), followed  by Czechia (18 contract  award notices, equivalent  to 
8 %  of  all  cases),  Spain,  Poland  and  Romania.  The  vast  majority  of  the  above 
concessions for the supply of drinking water and sanitation were awarded by regional or 
local  authorities,  metropolitan  authorities  or  specialised  entities  in  charge  of  such 
services in the area (e.g., syndicat mixte des eaux, syndicat intercommunal des eaux).  

Figure 41: Concession award notices in the water sector by country [number, %] 

114  Defined  as  encompassing  all  observations  where  the  main  Common  Procurement  Vocabulary  code 
declared  in  the  concession  award  notice  started  with  “651”  (i.e.  65100000-4  Water  distribution  and 
related services, 65110000-7 Water distribution, 65111000-4 Drinking-water distribution, 65120000-0 
Operation  of  a  water-purification  plant,  65121000-7  Water  demineralisation  services,  65122000-0 
Water  desalination  services,  65123000-3  Water  softening  services,  65130000-3  Operation  of  water 
supplies). 

66 

 
 
 
 
                                                 
Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016 to 2021, 
EU-27 and EEA 

The concessions in the field of water accounted for 5.2 % of all concession award notices 
published  in  2016-2021  and  amounted  to  nearly  EUR  7  billion.  The  value  of  such 
concessions constituted less than 2 % of the total value of concessions published over the 
investigated period. 

Figure 42: Concession award notices published [number, value in billion euro, %] 

Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016 to 2021, 
EU-27 and EEA 

The  number  and  value  of  the  concession  award  notices  in  the  water  sector  increased 
significantly as from 2016, but the trend seems to have been even in the following years. 
The significant increase noticed in 2021 appears to compensate for the relative decline in 
the number and value of the concessions awarded in 2019 and 2020. 

Figure 43: Concession award notices in the water sector by year [number, value in billion euros] 

67 

 
 
 
 
 
Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016to 2021, EU-27 and 
EEA 

Case study - Water sector in France 

France is one of the Member States that applies partially the Concession Directive to the water 
sector  and  it  accounts  for  the  highest  number  of  concessions  awarded  in  this  sector  between 
2016 and 2021. 

Municipalities  and  inter-municipal  bodies  have  a  duty  to  determine  water  tariffs,  the  service 
level requirements and investments115. Their assemblies deliberate on tariffs and must abide by 
certain rules. Moreover, they are responsible for the service and handle complaints116.  

If water services are provided by a delegated private management body, the contract defines the 
terms  for  price  evolution  over  its  period117.  From  2015  private  operators  have  mandatory 
reporting  obligations  on  the  analysis  on  the  water  quality118.  Transparency  was  a  priority  in 
France even before the Concession Directive was implemented. Water companies publish legal 
performance indicators in their annual reports for the attention of the organising authorities119. 
Both  at  national  and  European  levels,  they  promote  the  accessibility  of  these  criteria  to 
consumers to inform them about water quality and service120.  

EurEau reports that performance improves gradually for most services in France: “in Paris, the 
drinking water networks operations were delegated to two private operators from 1985 to 2009. 
The  results  show  leakage  rates  declining  from  22 %  in  1985  to  4 %  in  2009.  These 

115  EurEau,  Water  Matters:  an  insight  into  the  success  and  challenges  facing  the  European  water  sector 

(2017) (available at: file (eureau.org)) p 52. 

116 EurEau, The Governance of Water Services in Europe (2020) (available at: file (eureau.org)) p 30. 
117 ibid. 
118  EurEau,  Water  Matters:  an  insight  into  the  success  and  challenges  facing  the  European  water  sector 

(2017) (available at: file (eureau.org)) p 53. 

119  Tristan  Mathieu,  General  Delegate  of  Professional  Federation  of  Water  Companies,  Concession 
Directive in water and waste-water sector state of play in France after 5 years applying (2021) Power 
Point Presentation (FP2E) 5. 

120 EurEau, The Governance of Water Services in Europe (2020) (available at: file (eureau.org)) p 31.  

68 

 
 
 
 
                                                 
improvements were obtained through district metering, the installation of GSM sensors to locate 
leaks  and  active  leakage  control  measures”121.  Furthermore,  in  terms  of  affordability, 
subnational  authorities  (départements)  established  a  Social  Fund  for  Housing  which  is  co-
financed by them and the water operators122.  

Generally  referred  to  concessions, representatives  of Federation  of  Water  Companies  reported 
that they are deemed to contribute to: 

  Water quality (99.3 % compliance of top water analysis), 

  Water resources protection (81.4 % of water efficiency contribution), 

  Social  innovation  (500 000  supported  vulnerable  households  to  pay  their  water 

invoices), 

  Consumer relationship innovation (94 % of consumers have the possibility to turn to the 

water mediator, and 80 % of the disputes are solved)123. 

Therefore,  from  the  information  presented  above,  the  water  sector  in  France  is  gradually 
improving  thanks  to  the  French  legal  tradition  in  the  management  of  the  water  sector  and  the 
reinforcement of those rules via the implementation of the Concession Directive.  

The participation  of SMEs in  the water  concessions, estimated at  around 10.7 % of the 
number  of  concessions,  appear  to  be  significantly  lower  than  SMEs’  share  in  all 
concessions  awarded  under  the  Concessions  Directive,  estimated  at  around  30 %.  This 
difference can be explained by the fact that the sector is highly capital intensive, and this 
may constitute an entry barrier for SMEs.  There was only one contract award notice in 
the  water  sector  where  the  winning  companies  were  of  a  mixed  size.  The  remaining 
88.8 % of notices reported awards to concessionaires classified as large enterprises. 

The competition levels in the water sector appears to be somewhat lower than what was 
observed across all sectors, with an average number of bids received at 2.13 (compared 
to  2.44  offers  for  all  award  notices  during  the  2016-2021  period).  This  can  also  be 
explained by the fact the sector is highly capital intensive. 

Finally,  as  far  as  the  international  presence  in  the  water  sector  is  concerned,  the 
concession award notices published in  Tenders Electronic Daily 2016-2021 reported no 
direct  cross border awards. The foreign market  presence through local  subsidiaries was 
relatively  frequent  in  the  water  sector  concessions,  reaching  nearly  29 %  of  all  such 
concessions  awarded,  while  across  sectors,  only  13.7 %  of  concession  contacts  were 
awarded  to  local  subsidiaries  of  companies  located  in  countries  different  from  the 
country of the contracting authority. 

121  EurEau,  Water  Matters:  an  insight  into  the  success  and  challenges  facing  the  European  water  sector 

(2017) (available at: file (eureau.org)) p 53. 

122 EurEau, Making the right to water and sanitation a reality in Europe, Briefing Note (2016) (available at 

file (eureau.org)) p 6. 

123  Tristan  Mathieu,  General  Delegate  of  Professional  Federation  of  Water  Companies,  Concession 
Directive in water and waste-water sector state of play in France after 5 years applying (2021) Power 
Point Presentation (FP2E) 3.  

69 

 
 
 
 
                                                 
Figure  44:  Indirect  cross-border  awards  in  the  water  sector  by  the  location  of  the  global  ultimate 
owner of the winning company [%] 

Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016 to 2021, 
EU-27 and EEA 

Based  on  the  number  of  award  notices  published  by  authorities  applying  the  Directive, 
the vast majority of concessions won by domestically owned companies was recorded in 
France.  Firms  with  global  ultimate  owners  located  in  Luxembourg  also  secured  an 
important share of intra-EU cross-border awards.  

Figure  45:  Indirect  cross-border  awards  in  the  water  sector  by  the  location  of  the  global  ultimate 
owner of the winning company – overview by countries [number] 

Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016to  2021, 
EU-27 and EEA 

into 

in-depth 

Looking  more 
linkages  of  successful 
concessionaires in the sector, it seems that they most frequently belonged to one of the 
three large corporate groups active in the water sector in the EU, namely: Veolia, Suez 
and  Saur.  These  three  groups  won  nearly  80 %  of  all  water  concessions  from  2016  to 
2021  (36.8 %,  21.3 %  and  22.2 %,  respectively),  located  in  various  countries.  Over  the 

the  corporate  ownership 

70 

 
 
 
 
 
entire  period  analysed  in  this  evaluation,  market  shares  became  more  equally  spread, 
with independent companies or companies belonging to other corporate groups gradually 
gaining importance, from 8 % in 2017 to 35 % in the last year.  

Figure  46:  Indirect  cross-border  awards  in  the  water  sector  by  the  location  of  the  global  ultimate 
owner of the winning company – main corporate groups by year [%] 

Source: In-house analysis based on Official Journal/Tenders Electronic Daily data for 2016 to 2021, 
EU-27 and EEA 

8.  GENERAL CONCLUSIONS 

The Directive  has  been transposed  and is  currently  applied in  all Member States. Most 
transpositions  took  place after the deadline  of April 2016, with the last transposition in 
2020. Due to delayed transposition and the lack of information that would allow a robust 
comparison pre- and post-Directive, it is too early to draw firm conclusions on whether 
the Directive has achieved its objectives. 

In economic terms, there was a sharp increase in the number of concessions following 18 
April  2016,  which  suggests  that  the  Directive  promoted  transparency  in  the  use  of 
concession contracts across almost all Member States. The use of concessions is highly 
concentrated  as  four  Member  States  (France,  Italy,  Germany,  and  Spain)  account  for 
84 % of all post-Directive concession contracts with France alone standing at 40 % of all 
post-Directive concessions.  

The average number of offers is 2.4 offers per concession notice but the trend is variable 
after 2016 and it does not allow to draw a clear conclusion about the extent to which the 
level  of  competition  (measured  by  the  level  of  participation  in  a  concession  tender 
procedure) has evolved.  

71 

 
 
 
 
The  share  of  concessions  awarded  to  SMEs  has  slightly  increased  since  2016.  On 
average,  between  2016  and  2021,  SMEs  won  29.2 %  of  concessions,  and  3.6 %  in 
consortia. The share of SMEs winning concession is nevertheless lower than SMEs share 
in  the  overall  economy  and  the  difference  represents  scope  for  further  improvement. 
SMEs appear to be more successful in competitions for low value concessions, which can 
be explained by the required upfront investment and risk linked to concessions. 

When  analysing  the  value  of  concession  award  notices,  high  value  concessions  are 
awarded without prior publication of a concession contract  notice, hence  without a call 
for  competition.  Looking  closely  at  this  data  it  appears  that  such  high  value  awards 
without  calls  for  competition  occur  in  the  public  utilities  sectors  and  in  particular  in 
electricity  distribution.  The  electricity  sector  is  characterised  by  existence  of  special  or 
exclusive rights, explaining the absence of publication of calls for competition. 

The Directive applies fully to the water sector only in Czechia, Poland and Romania and 
partially  in  Bulgaria,  France  and  Spain  whereas  the  remaining  21  Member  States  have 
transposed Article 12  and therefore do not  apply the Directive to  the water sector.  The 
assessment of the economic impact on the internal market of the exclusion of the water 
sector  was  carried  out  against  this  background  involving  limited  information,  which  in 
turn rendered difficult to make firm and robust conclusions. 

The  concessions  in  the  water  sector  represented  5.2 %  of  all  concession  award  notices 
published  in  2016-2021  and  amounted  to  nearly  EUR  7  billion  or  less  than  2 %  of  the 
total value of concessions published over the investigated period. The number of offers 
received per tender and the percentage of SMEs winning such contracts are lower than in 
other  sectors,  which  may  be  explained  by  the  fact  that  the  sector  is  highly  capital 
intensive. 

72 

 
 
 
 
 
9.  ANNEXES 

9.1.  Methodology and data sources 

This report draws on the findings of the LE Europe study of November 2021 [LE Europe 
and Spark Legal (2021)], commissioned by the European Commission  as a background 
document for this review. As the study covered public procurement notices published in 
TED until 2019, data covering additional years (notably years 2020 and 2021) was added 
in this report, by directly sourcing it from the publications available on the TED website 
(https://ted.europa.eu/TED/). TED data is  also  available in  a CSV format under the EU 
open  data  portal  (https://data.europa.eu/data/datasets/ted-csv?locale=en  ).  Additionally, 
other data sources such as Orbis, SBS data or UNIDO were also referred to in the report. 
The  following  section  discussed  key  data  sources  used  in  this  report,  as  well  as  the 
methodologies applied when processing them. 

  LE Europe and Spark Legal study 

As  mentioned  above,  the  main  source  of  country  knowledge  and  data  related  to  pre-
Directive  period  is  the  Study  on  the  implementation  of  the  Concessions  Directive  of 
November 2021124.  

While interpreting data sourced from the above study, it is important to note that in line 
with  the  explanation  provided  in  the  methodology  section,  the  official  transposition 
deadline (18 April 2016) has been used as the cut-off date to determine the pre- and post-
Directive  periods125.  As  the  period  covered  by  this  study  stretches  from  2012,  all 
observations identified as potentially related to concessions before 18 April 2016, refer to 
contract carried out using the general rules on the award of public procurement contract, 
namely  Directives  2004/18/EC  or  2004/17/EC.  The  identification  of  these  observations 
was  based  in  text  matching  (exact  and  fuzzy  matching)126.  Although  significant  effort 
have been put into checking the quality of the above data, this approach carries out some 
uncertainty on whether or not all the observations captured indeed referred to concession 
contracts. 

To mitigate the above risk, namely to minimise the possibility of including false positive 
observations  in  the  dataset  analysed,  OJ/TED  data  used  for  the  assessment  of  the 
implementation of the Directive (i.e. chapters 3 and 4 of the report) relate exclusively to 
the publications on concession-specific standard forms. 

  OJ/TED 

The key source of public procurement data related to the implementation of the Directive 
was Tenders Electronic Daily (“OJ/TED”) - the online version of the 'Supplement to the 
to  European  public  procurement 
Official 
(https://ted.europa.eu/TED/main/HomePage.do).  The  publications 
take  place  using 
standard  forms  (“SF”),  as  defined  in  Commission  Implementing  Regulation  (EU) 
2015/1986  of  11  November  2015  establishing  standard  forms  for  the  publication  of 

the  EU,  dedicated 

Journal'  of 

124  LE Europe and Spark Legal (2021). 
125  Idem, page 176. 
126  Idem, Annex 2 Methodological annex, pages 171 - 201. 

73 

 
 
 
                                                 
notices in the field of public procurement and repealing Implementing Regulation (EU) 
No 842/2011 (Text with EEA relevance)127.  

All newly processed OJ/TED data used in this report cover years 2016-2021 and refer to 
EU-27  Member  States  and  3  EEA  countries  (Iceland,  Liechtenstein  and  Norway).  This 
dataset is used as a basis for discussing patterns in the implementation of the Concession 
Directive presented in chapters 5 and 6, whereas the earlier chapters predominantly refer 
to LE Europe and Spark Legal (2021). As explained earlier, the external study also used 
OJ/TED  data  as  a  starting  point  for  their  analysis,  but  it  covered  a  different  time 
dimension,  as  well  as  a  more  advanced  methodology  to  identify  relevant  observations.  
Basically,  the  supplementary  OJ/TED  data  was  principally  used  to  describe  the 
implementation  of  the  Directive,  whenever  findings  from  LE  Europe  and  Spark  Legal 
(2021) were not sufficient – this occurred in particular whenever the TED-based analysis 
presented in this report covered years beyond 2019 or aspects not discussed in the study 
with  a  sufficient  level  of  granularity  (e.g.  international  aspects).  As  a  consequence,  the 
following approach was undertaken when processing TED data covered by the Directive:  

  Data  used  covered  only  publications  on  standard  forms  (SF)  dedicated  to  the 
Concessions  Directive,  for  example  SF23  and  SF25  in  case  of  analysis  of  the 
results of concession award procedures; this means that contrary to the approach 
undertaken  by  LE  Europe  and  Spark  Legal  (2021),  no  text  matching  was 
performed on other standard forms.  

  Concession  award  notices  (SF25)  containing  information  about  cancelled  or 
ineffective procedures (e.g. no offers submitted) were removed from  the  dataset 
used. 

  The analysis covered years 2016 - 2021 (the starting point is the first publication 
on  a  standard  form  dedicated  to  the  Directive,  which  appeared  in  OJ  S  issue 
number 3/2016 on 4 January 2016).  

  Contract values published in OJ/TED were subject to manual corrections: for the 
years  2016-2019  the  corrections  applied  in  LE  Europe  and  Spark  Legal  (2021) 
were  re-used;  for  the  years  2020-2021  the  data  was  inspected  for  outliers  and 
manually checked if necessary.  

 

In  case  of  the  cross-border  analysis  -  if  the  contract  was  awarded  to  many 
winners, only the first winner was taken into account assuming that the firm was 
the  consortium  leader.  This  in  particular  concerned  the  winners’  country  of 
location. 

  Orbis BvD (Moody’s Analytics) 

127  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2015.296.01.0001.01.ENG  

74 

 
 
 
 
 
                                                 
The findings concerning third-countries firm’s presence on the EU market was estimated 
based on Orbis BvD128 (a commercial database collecting broad range of company data 
including their ownership structure). 

Data  about  the  winning  companies  from  OJ/TED  were  matched  with  Orbis  BvD  using 
batch-matching service. Companies with A match score were retained without scrutiny. 
The  matching  results  for  companies  that  received  lower  score  but  have  been  awarded 
more  than  1  concession  (750  firms)  were  inspected  and,  depending  on  the  individual 
decision, could be matched manually despite lower score. At this stage, 977 out of 6 247 
complete awards were still unmatched with Orbis BvD. The list of 977 firms was again 
subject  to  manual  scrutiny  and  further  83  firms  were  matched  with  their  Orbis  BvD 
entries. The final result of matching is presented in Figure 47 below: 

Figure 47: Matching results between OJ/TED winning companies and Orbis BvD data 

Match results 
Not matched 
Matched with A score 
Matched manually 
Total 

Freq. 

Percent 

   894 
5 024 
   329 
6 247 

14.34 
80.42 
  5.23 

Overall,  nearly  86 %  of  all  records  (companies  winning  concession  awards)  were 
successfully  matched  with  Orbis  BvD  in  order  to  upload  additional  information  about 
these companies, such as the location and type of their global ultimate owners (GUO). 

As  far  as  the  information  on  the  GUO  is  concerned  (i.e.  their  types  and  country  of 
location),  the  following  methodology  is  applied  by  Orbis  BvD:  to  define  an  Ultimate 
Owner, the shareholding structure of  a  company  having  a  BvD  Independence  Indicator 
different from  A+, A or A- is used (which means that the company is independent  and 
consequently, has  no  Ultimate Owner).  The shareholder  with  the highest direct or total 
percentage of ownership is sought. If this shareholder is independent, it is defined as the 
Ultimate Owner of the subject  company and an  ultimate owner link is  created between 
the  subject  company  and  the  Ultimate  Owner.  If  the  highest  shareholder  is  not 
independent,  the  same  process  is  repeated  to  him  until  an  Ultimate  Owner  is  found129. 
Finally, the geographical location allows distinguishing between the Global UO from the 
Domestic UO. The minimum percentage of control in the path from a subject company to 
its Ultimate Owner chosen for the analysis presented in this document was 50.01%. 

  Other data sources 

GWI Water data 

128  Orbis BvD database by Moody's Analytics, https://orbis.bvdinfo.com/ 
129  Based on Orbis BvD glossary entry “Ultimate Owner identification”. 

75 

 
 
 
 
 
 
                                                 
  The Member States survey 

The  Commission  services  launched  an  internal  survey  among  Member  States  to  gather 
information for the mandatory reporting on the water sector, as foreseen in Article 53 of 
the Concession Directive. The surveys were drafted  in  a word document and contained 
10  predominantly  open  questions  on  legal  issues,  regulatory  framework,  managerial 
systems  governing  the  water  sector,  etc.  Because  of  its  free-text  structure,  it  allowed 
Member  States  representatives  to  provide  extensive  replies,  as  well  as  include  links  to 
external  sources, such  as national  studies or databases. The questionnaires  were  sent  to 
the representatives of Member States on 4 January 2021, with an indicative deadline of 
31 March 2021. The last reply was received by the Commission services in August 2021. 
All Member States provided their contributions.   

9.2. 

Supplementary data 

Table 4: Concession award notices by procedure type and publication year [number] 

Award procedure 
Without publication 
With publication 
Total 

2020 
119 
725 
844 
Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

2017 
24 
555 
579 

2016 
18 
125 
143 

2018 
33 
811 
844 

2019 
56 
876 
932 

2021  Total 

112 
881 
993 

362 
3973 
4335 

Table  5:  Concession  award  notices  by  procedure  type  and  publication  year  [value  in  million 
EUR] 

Award 
procedure 
Without 
publication 
With 
publication 
Total 

2016 

2017 

2018 

2019 

2020 

2021  Total 

1141.7 

1141 

23561  45788.3 

81785.2 

43561 

196978.2 

12688.3  16992.4  38236.7  41486.5 
13830.0   18133.4  61797.7  87274.8 

34300.5  36913.3 
116085.7  80474.3 

180617.7 
377595.8 

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

Table 6: Concession award notices by sector [value in million EUR] 

Sector 
Services for citizens 
Public utilities 
Construction work 
Transport 
Environmental 

Sum 
        35 871.63  
      199 371.80  
        36 721.84  
        40 481.95  
        20 724.48  

76 

 
 
 
 
 
 
Communication and IT services 
Other 
Total 

        35 933.11  
           8 490.99  
      377 595.80  

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

Table 7: Average number of offers per concession award notice, by year  

Average 

All sectors 
combined 

Without Public 
utilities 

2016 

2017 

2018 

2019 

2020 

2021 

All years 

2.93 

2.68 

2.52 

2.25 

2.30 

2.48 

2.44 

3.03 

2.69 

2.57 

2.29 

2.45 

2.56 

2.52 

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

Table 8: Concession award notices by contractor size class and publication year [number] 

Size class 
SME 
Mixed 
Large 
Total 

2020 
253 
40 
551 
844 
Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

2018 
244 
32 
568 
844 

2019 
272 
31 
629 
932 

2016 
32 
4 
107 
143 

2017 
151 
11 
417 
579 

2021  Total 

314 
39 
640 
993 

1266 
157 
2912 
4335 

Table  9:  Concession  award  notices  by  contractor  size  class  and  publication  year  [value  in 
million EUR] 

Size class 
SME 
Mixed 
Large 

2016 
572.5 
182.2 

2017 
2031.9 
1066.3 

Total 
2019 
24730.9 
4832.9 
5821.6 
1560.9 
13075.3  15035.2  56710.6  80881.0  104624.0  76717.2  347043.4 
13830.0  18133.4  61797.7  87274.8  116085.7  80474.2  377595.9 

2020 
10300.7 
1161.0 

2018 
3835 
1252.1 

2021 
3157.9 
599.1 

Source: In-house analysis based on OJ/TED data for 2016-2021, EU-27 and EEA 

Table 10: High-level groupings for the sectorial analysis – list of CPV divisions 

High-level  group 
name 
Services 
citizens 

for 

CPV codes covered 

55-Hotel, restaurant and retail trade..  
92-Recreational, cultural and sporting services  
85-Health and social work services  
98-Other community, social and personal services  

77 

 
 
 
 
 
 
  
 
Public utilities 

Construction 
work 

Transport 

Environmental 

to 

Environmental improvement works 
Environmental engineering consultancy services 
Environmental impact assessment for construction 
Environmental standards for construction 
Environmental indicators analysis for construction 
Environmental  Impact  Assessment  (EIA)  services  for 

75-Administration, defence and social security services  
70-Real estate services 
80-Education and training services  
35-Security, fire-fighting, police and defence equipment 
65-Public utilities 
09-Petroleum products, fuel, electricity and other sources of energy 
31-Electrical machinery, apparatus, equipment and consumables; lighting 
76-Services related to the oil and gas industry 
45-Construction work 
44-Construction  structures  and  materials;  auxiliary  products 
construction (except electric apparatus) 
71-Architectural, construction, engineering and inspection services 
60-Transport services (excl. Waste tr..  
63-Supporting and auxiliary transport..  
34-Transport equipment and auxiliary ..  
90-Sewage, refuse cleaning and environmental services 
45262640-9 
71313000-5 
71313400-9 
71313420-5 
71313430-8 
71313440-1 
construction 
71313450-4 
71314000-2 
71314200-4 
71314300-5 
71314310-8 
80540000-1 
45262640-9 
71313000-5 
71800000-6 
consultancy 
45112320-4 
45112330-7 
45112340-0 
45112350-3 
45112360-6 
09330000-1 
09331000-8 
09331100-9 
09331200-0 
09332000-5 
31121300-3  Wind-energy generators 
31121310-6  Windmills 
31121320-9  Wind turbines 
31121330-2  Wind turbine generators 
31121331-9 
31121340-5  Wind farm 
44162500-8 

Environmental monitoring for construction 
Energy and related services 
Energy-management services 
Energy-efficiency consultancy services 
Heating engineering services for buildings 
Environmental training services 
Environmental improvement works 
Environmental engineering consultancy services 
Consulting 

Land-reclamation work 
Site-reclamation work 
Soil-decontamination work 
Reclamation of waste land 
Land rehabilitation work 
Solar energy 
Solar panels 
Solar collectors for heat production 
Solar photovoltaic modules 
Solar installation 

for  water-supply  and  waste 

Drinking-water piping 

Turbine rotors 

services 

78 

 
 
 
Landfill-gas electricity generating plant construction work 

Drinking-water treatment plant construction work 

45232150-8  Works related to water-distribution pipelines 
45232151-5  Water-main refurbishment construction work 
45251160-0  Wind-power installation works 
45251240-5 
45252120-5  Water-treatment plant construction work 
45252126-7 
45252127-4  Wastewater treatment plant construction work 
Sewage plant equipment 
45252130-8 
Sludge-dewatering plant construction work 
45252140-1 
45252200-0 
Purification plant equipment 
45252210-3  Water purification plant construction work 
Refuse-incineration plant construction work 
45252300-1 
65100000-4  Water distribution and related services 
65110000-7  Water distribution 
65111000-4 
65120000-0 
65121000-7  Water demineralisation services 
65122000-0  Water desalination services 
65123000-3  Water softening services 
65130000-3 
32-Radio, television, communication, ..  
64-Postal and telecommunications serv.. 
72-IT services: consulting, software 
All remaining CPV codes 

Drinking-water distribution 
Operation of a water-purification plant 

Operation of water supplies 

Communication 
and IT services 

Other 

Table 11: Private sector participation (PSP) contracts type in the water sector 

Affermage contract       A  contract  type  unique  to  the  French  market,  and  some  French 
speaking  parts  of  Africa.  A  private  company  is  responsible  for  utility 
billing  and  operating  expenditure,  while  the  municipal  client  retains 
control of capital expenditure. 

Build-operate-
transfer 

The  client  outsources  the  financing  of  the  project  to  a  private 
developer  (or  consortium  of  developers).  The  developer  may  be 
responsible for construction and operation of the  asset, or they may 
subcontract  to  other  private  companies.  The  developer  receives 
revenue  through  a  water  purchase/wastewater  service  agreement 
with the client. 

Build-own-operate       Similar to a BOT contract, but the private developer does not transfer 
ownership  of  the  asset  at  the  end  of  the  operating  period.  The 
contract  duration  is  the  length  of  the  water  purchase/wastewater 
service agreement between the client and the developer. 

Build-transfer-lease      The  private  sector 

infrastructure  before 
finances  and  builds 
transferring ownership to the government. The government then pays 
the  private  sector  an  regular  fee  to  operate  the  infrastructure,  and 
repay  the  capital  outlay.  Any  user  fee  is  paid  to  the  government. 
Popular in South Korea. 

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Build-transfer-
operate 

Under  this  model  the  private  sector  finances  and  builds  a  facility 
before  transferring  the  ownership  rights  to  the  government.  It  then 
receives  the  right  to operate the  facility for a set period of time  and 
recoups  its  investment  and  operational  costs  through  user  fees  or 
tariffs. Popular in South Korea. 

Design-build-
finance 

Private  party  responsible  for  part-funding  the  construction  phase  of 
the project before being repaid via a number of staggered milestone 
payments, the last of which is made on commercial acceptance. 

Independent  water 
and power project 

A  combined  power  and  desalination  plant  financed,  built,  and 
operated  under  a  BOO/BOT  type  project  structure.  These  contracts 
are  typically  confined  to  the  GCC  region.  The  project  developer  will 
sign a power and water purchase agreement with the utility client. 

Utility concession 

Utility lease 

An agreement to hand over the running of an entire utility to a private 
company.  The  private  company  is  responsible  for  capital  investment 
and  operating  expenditure,  but  the  client  retains  ownership  of  the 
asset. There may be an upfront payment or lease fee to the client. The 
private  company  is  responsible  for  collecting  water  and  wastewater 
charges, and this is their source of income for the contract. 

An  agreement  to  hand  over  the  running  of  the  utility  to  private 
company,  in  return  for  regular  lease  payments.  The  client  retains 
ownership  of  the  utility  assets  and  has  responsibility  for  capital 
investment,  unlike  a  utility  concession.  The  private  company  is 
responsible  for  collecting  water  and  wastewater  charges,  and  this  is 
their source of income for the contract. 

Source: GWI Water Data  

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REFERENCE LIST  

  EurEau (2021), Europe’s Water in Figures - An overview of the European drinking water 

and waste water sectors, 2021 edition. 

  European Commission (2011), 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, Brussels, 20.12.2011, SEC(2011) 1588 final. 

  European Commission (2020), Communication from the Commission to the European 

Parliament, the Council, the European Economic and Social Committee and the 
Committee of the Regions - An SME Strategy for a sustainable and digital Europe, 
Brussels, 10.3.2020, COM(2020) 103 final. 
Available at: https://ec.europa.eu/info/sites/default/files/communication-sme-strategy-
march-2020_en.pdf   

  Boscheck, R. (2002), European Water Infrastructures: Regulatory Flux void of 

Reference? The Cases of Germany, France, and England and Wales, Water Supply 
Industry, Intereconomics, May/June 2002. 

  de Bas, P., Hausemer, P., Kruger, T., Rabuel, L., de Vet, J.M., Vincze, M.(2019), 

Analysis of the SMEs' participation in public procurement and the measures to support it 
- 697/PP/GRO/IMA/18/1131/10226, Luxembourg: Publications Office of the European 
Union, 2019. 
Available at: https://op.europa.eu/en/publication-detail/-/publication/eec8227c-ecc4-
11ea-b3c6-01aa75ed71a1 

  LE Europe and Spark Legal (2021), “Study on the implementation of the Concessions 

Directive - Final Report”, November 2021. 

  Prometeia, BIP, Economics for Policy - a knowledge Centre of Nova SBE Lisboa (2021), 
“Study on the measurement of cross-border penetration in the EU public procurement 
market - Final Report”, Luxembourg: Publications Office of the European Union, 2021.  
Available at: https://op.europa.eu/en/publication-detail/-/publication/c7fcd46a-b84d-
11eb-8aca-01aa75ed71a1/language-en/format-PDF/source-210260521 

  WTO (2019), “World trade report 2019 - The future of services trade”, © World Trade 

Organization 2019.  
Available at: https://www.wto.org/english/res_e/publications_e/wtr19_e.htm  

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