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# 52011PC0897

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the award of concession contracts /\* COM/2011/0897 final - 2011/0437 (COD) \*/**

  

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

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

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

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

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

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

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENT

Between 12 May and 9 July 2010, the Commission
held a public online consultation open to the general public. Between 5 August
and 30 September 2010 another public consultation targeting the business
community, social partners and contracting entities was held. The consultations
confirmed that  the lack of legal certainty caused problems and they demonstrated
the obstacles that companies face with regard to market access. They also suggested
that appropriate EU action should be taken. The results can be found at http://ec.europa.eu/internal\_market/consultations/2010/concessions\_en.htm

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

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

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

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

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

3.           LEGAL ELEMENTS OF THE
PROPOSAL

·
Legal basis

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

·
Subsidiarity principle

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

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

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

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

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

The proposal therefore complies with the
subsidiarity principle.

·
Proportionality principle

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

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

·
Choice of instruments

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

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

4. Budgetary implication

The proposal has no budgetary implications.

5. Additional Information

·
Review/revision/sunset clause

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

·
Detailed explanation of the proposal

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

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

Legal certainty

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

Definition: The
present proposal for a Directive on the award of concession contracts provides
for a more precise definition of concession contracts with reference to the
notion of operational risk. It makes clear what types of risk are to be considered
operational and how to define significant risk. It also provides references as
to the maximum duration of concessions.

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

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

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

Better access to the concessions markets

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

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

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

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

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

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

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

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

2011/0437 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the award of concession contracts

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the
European Commission,

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

Having regard to the opinion of the
European Economic and Social Committee[2],

Having regard to the opinion of the
Committee of the Regions[3],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
The absence of clear rules at Union level
governing the award of concession contracts gives rise to legal uncertainty and
to obstacles to the free provision of services and causes distortions in the
functioning of the Internal Market. As a result, economic operators, in
particular Small and Medium Enterprises (SMEs), are being deprived of their
rights within the Internal Market and miss out on important business
opportunities, while public authorities may not find the best use of public
money so that EU citizens benefit from quality services at best prices. An
adequate legal framework for the award of concessions would ensure effective
and non-discriminatory access to the market to all Union economic operators and
legal certainty, favouring public investments in infrastructures and strategic
services to the citizen.

(2)
Public procurement plays a key role in the
Europe 2020 strategy[4]
as one of the market-based instruments to be used to achieve a smart,
sustainable and inclusive growth while ensuring the most efficient use of
public funds. The award of works concessions is presently subject to basic
rules of Directive 2004/18/EC of the European Parliament and of the Council of
31 March 2004 on the coordination of procedures for the award of public works
contracts, public supply contracts and public service contracts while the award
of services concessions with a cross-border interest is subject to the
principles of the Treaty, and in particular the principle of free  movement of
goods, freedom of establishement and freedom to provide services as well as to
the principles deriving therefrom such as equal treatment, non-discrimination,
mutual recognition, proportionality and transparency. There is a risk of legal
uncertainty related to different interpretations of the principles of the
Treaty by national legislators and of wide disparities among the legislations
of different Member States. Such risk has been confirmed by the extensive case
law of the Court of Justice of the European Union but which has only partially
addressed certain aspects of the award of concession contracts. Hence, a
uniform concretisation of the Treaty principles across all Member States and
the elimination of discrepancies in their understanding following therefrom is
necessary at the Union level in order to eliminate persisting distortions of
the Internal Market.

(3)
This Directive should not in any way affect the
freedom of Member States or public authorities to decide on the direct
provision of works or services to the public or on the outsourcing of such
provision to third parties. Member States or public authorities should remain
free to define the characteristics of the service to be provided, including any
conditions regarding the quality or price of the services, in order to pursue
their public policy objectives

(4)
For concessions above a certain value, it is
appropriate to provide for a minimum coordination of national procedures for
the award of such contracts based on  principles of the Treaty so as to
guarantee the opening-up of concessions to competition and adequate legal
certainty. Those coordinating provisions should not go beyond what is necessary
in order to achieve the aforementioned objectives. However, Member States should
be allowed to  complete and develop further those provisions if they find it
appropriate notably to better ensure compliance with the principles above.

(5)
Certain coordination provisions should also be
introduced for the award of works and services concessions awarded in the
water, energy, transport and postal services sectors given that national
authorities may influence the behaviour of entities operating in those sectors
and taking into account the closed nature of the markets in which they operate,
due to the existence of special or exclusive rights granted by the Member
States concerning the supply to, provision or operation of networks for
providing the services concerned.

(6)
 Concessions are contracts for pecuniary
interest concluded between one or more economic operators and one or more
contracting authorities or entities and having as their object the acquisition
of works or services where the consideration consists, normally, in the right
to exploit the works or services that are the subject of the contract. The
execution of these works or services are subject to specific binding
obligations defined by the contracting authority or entity which are legally
enforceable. By contrast, certain State acts such as authorisations or licences
whereby the State or a public authority establishes the conditions for the
exercise of an economic activity, should not qualify as concessions. The same
applies to certain agreements having as their object
the right of an economic operator to exploit certain public domains or
resources, such as land lease contracts whereby the
State or contracting authority or entity establishes only general conditions for their use without
acquiring specific works or services.

(7)
Difficulties related to the interpretation of
the concepts of concession and public contract have been source of continued
legal uncertainty among stakeholders and have given rise to numerous judgments
of the Court of Justice of the European Union on this subject. Therefore, the
definition of concession should be clarified, in particular by referring to the
concept of substantial operating risk. The main feature of a concession, the
right to exploit the works or services, always implies the transfer to the
concessionaire of an economic risk involving the possibility that it will not
recoup the investments made and the costs incurred in operating the works or
services awarded. The application of specific rules governing the award of
concessions would not be justified if the contracting authority or entity
relieved the contractor of any potential loss, by guaranteeing a minimal
revenue, equal or higher to the costs that the contractor has to incur in
relation with the performance of the contract. At the same time it should be
made clear that certain arrangements which are fully paid by a contracting
authority or a contracting entity should qualify as concessions where the
recoupement of the investements and costs incurred by the operator for
execution the work or provididng the service depends on the actual demand for
or the availability of the service or asset.

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

(9)
The notion of special or exclusive rights is
central to the definition of the scope of this Directive, since entities which
are neither contracting entities pursuant to Article 4 (1) (1) nor public
undertakings are subject to its provisions only to the extent that they
exercise one of the activities covered on the basis of such rights. It is
therefore appropriate to clarify that rights which have
been granted by means of a procedure based on objective criteria, notably
pursuant to Union legislation, and for which adequate publicity has been ensured
do not constitute special or exclusive rights for the
purposes of this Directive. This legislation should
include Directive 98/30/EC of the European Parliament
and of the Council of 22 June 1998 concerning common rules for the internal
market in natural gas[5],
Directive 96/92/EC of the European Parliament and of the Council of 19 December
1996 concerning common rules for the internal market in electricity[6], Directive 97/67/EC of the European Parliament and of the Council of
15 December 1997 on common rules for the development of the internal market of
Community postal services and the improvement of quality of service[7], Directive 94/22/EC of the
European Parliament and of the Council of 20 May 1994 on the conditions for
granting and using authorisations for the prospection, exploration and
production of hydrocarbons[8]
and Regulation (EC) No 1370/2007of the European Parliament and of the Council
of 23 October 2007 on public passenger transport services by rail and by
road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70[9]. The increasingly diverse forms
of public action made it necessary to define more clearly the notion of
procurement itself. The Union rules on concessions refer to the acquisition of
works or services for a consideration consisting in exploitation of those works
or services. The notion of acquisition should be understood broadly in the
sense of obtaining the benefits of the works or services in question not
requiring in all cases a transfer of ownership to contracting authorities or
contracting entities. Furthermore, the mere financing of an activity, which is
frequently linked to the obligation to reimburse the amounts received where
they are not used for the purposes intended, does not usually fall under this Directive.

(10)
It has also proven necessary to clarify what
should be understood as a single procurement, with the effect that the
aggregate value of all concessions concluded for the purpose of this
procurement has to be taken into account with regard to the thresholds of this Directive,
and that the procurement should be advertised as a whole, possibly split into
lots. The concept of single procurement encompasses all supplies, works and
services needed to carry out a particular project. Indications for the
existence of one single project can for instance consist in overall prior
planning and conception by the contracting authority, the fact that the
different elements purchased fulfil a single economic and technical function or
that they are otherwise logically interlinked.

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

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

(13)
It is appropriate to exclude from the scope
of this Directive certain services concessions awarded to an economic operator which is itself a contracting authority or a
contracting entity on the basis of an exclusive right which that operator
enjoys under published national law or administrative act and which has been granted
in accordance with the Treaty and Union sectoral legislation concerning the
management of networks infrastructure related to the activities set out in
annex III, since such exclusive right makes it impossible to follow a
competitive procedure for the award. By way of derogation and without prejudice
to the legal consequences of the general exclusion from the scope of this
Directive, concessions as defined in article 8 (1) should be subject to the
obligation to publish a concession award notice in view of ensuring basic
transparency unless the conditions of such transparency are provided for  in sectoral legislation.

(14)
It is appropriate to exclude certain service and
works concessions awarded to an undertakings affiliated to contracting
entities, having as its principal activity the provision of such services or
works to the group of which it is part, rather than offering them on the
market. It is also appropriate to exclude certain service and works concessions
awarded by a contracting entity to a joint venture which is formed by a number
of contracting entities for the purpose of carrying out activities covered by
this Directive and of which that entity is part. However, it is appropriate to
ensure that this exclusion does not give rise to distortions of competition to
the benefit of the undertakings or joint ventures that are affiliated with the
contracting entities; it is appropriate to provide a suitable set of rules, in
particular as regards the maximum limits within which the undertakings may obtain
a part of their turnover from the market and above which they would lose the
possibility of being awarded concessions without calls for competition, the
composition of joint ventures and the stability of links between those joint
ventures and the contracting entities of which they are composed.

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

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

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

(18)
In order to ensure adequate advertisement of
works and services concessions above a certain value awarded by contracting
entities and by the contracting authorities, the award of such contracts should
be preceded by the compulsory publication of a concession notice in the
Official Journal of the European Union. The thresholds should reflect the clear
cross-border interest of concessions to economic operators located in other
Member States. To calculate the value of a services concession, account must be
taken of the estimated value of all services to be provided by the concessionaire
from the point of view of a potential tenderer.

(19)
In view of the detrimental effects on
competition, awarding concessions without prior publication should only be
permitted in very exceptional circumstances. This exception should be limited
to cases where it is clear from the outset that a publication would not trigger
more competition, notably because there is objectively only one economic operator
who can perform the concession. Only situations of objective exclusivity can
justify the award of a concession without publication to an economic operator,
where the situation of exclusivity has not been created by the contracting
authority or contracting entity itself in view of the future award procedure,
and where there are no adequate substitutes, the availability of which should
be assessed thoroughly.

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

(21)
In the light of the results of the evaluation
conducted by the Commission on the reform of public procurement rules it is
appropriate to exclude from the full application of this Directive only those
services which have a limited cross-border dimension, namely the so-called
services to the person such as certain social, health and educational services.
These services are provided within a particular context that varies widely
amongst Member States, due to different cultural traditions. A specific regime
should therefore be established for concession for these services which takes
into account the fact that they are newly regulated. An obligation to publish a
prior information notice and a concession award notice of any concession with a
value equal to or greater than  thresholds established in this Directive is an
adequate way to provide information on business opportunities to potential
tenderers as well as on the number and type of contracts awarded to all interested
parties. Furthermore, Member States should put in place appropriate measures
with reference to the award of concession contracts for these services aimed at
ensuring compliance with the principles of transparency and equal treatment of
economic operators while allowing contracting authorities and contracting
entities to take into account the specificities of the services in question.
Member States should ensure that contracting authorities and contracting
entities may take into account the need to ensure quality, continuity,
accessibility, availability and comprehensiveness of the services, the specific
needs of different categories of users, the involvement and empowerment of
users and innovation.

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

(23)
In order to make it possible for all interested
operators to submit applications and tenders, contracting authorities and
contracting entities should be obliged to respect a minimum time limit for the
receipt of such applications.

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

(25)
In order to ensure transparency and equal
treatment, criteria for the award of concessions should always comply with some
general standards. These should be disclosed in advance to all potential
tenderers, be related to the subject matter of the contract and should not
offer to the contracting authority or contracting entity an unrestricted
freedom of choice. They should ensure the possibility of effective competition
and be accompanied by requirements that allow the information provided by the
tenderers to be effectively verified. In order to comply with these standards
while improving legal certainty, Member States may provide for the use of the
criterion of the most economically advantageous tender.

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

(27)
Concessions are usually long term, complex
arrangements where the contractor assumes responsibilities and risks
traditionally born by the contracting authorities and normally falling within
their remit and contracting entities. For this reason, contracting authorities
or entities should maintain a margin of flexibility in organising the awarding
process, involving also a possibility to negotiate the content of the contract
with the candidates. However, in order to ensure equal treatment and
transparency throughout the awarding procedure, it is appropriate to provide
for certain requirements as to the structure of the awarding process, including
negotiations, the dissemination of information and the availability of written
records. It is also necessary to provide that the initial terms of the
concession notice should not be deviated from, in order to prevent unfair
treatment of any potential candidates.

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

(29)
In technical specifications and in award
criteria, contracting authorities and contracting entities should be allowed to
refer to a specific production process, a specific mode of provision of
services, or a specific process for any other stage of the life cycle of a
product or service, provided that they are linked to the subject-matter of the
concession. In order to better integrate social considerations inthe award of
concessions, procurers may also be allowed to include, in the award criteria,
characteristics related to the working conditions. However, where the
contracting authorities or contracting entities use the  most economically
advantageous tender, such criteria may only relate to the working conditions of
the persons directly participating in the process of production or provision in
question. Those characteristics may only concern the protection of health of
the staff involved in the production process or the favouring of social
integration of disadvantaged persons or members of vulnerable groups amongst
the persons assigned to performing the contract, including accessibility for
persons with disabilities. In this case, any award criteria which include those
characteristics should in any event remain limited to characteristics that have
immediate consequences on staff members in their working environment. They
should be applied in accordance with Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services[10] and in a way that does not
discriminate directly or indirectly against economic operators from other
Member States or from third countries parties to the Agreement or to Free Trade
Agreements to which the Union is party. Contracting authorities and contracting
entities should, also where they use the criterion of the  most economically
advantageous tender, be allowed to use as an award criterion the organisation,
qualification and experience of the staff assigned to performing the concession
in question, as this may affect the quality of concession performance and, as a
result, the economic value of the tender.

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

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

(32)
The laws, regulations and collective agreements,
at both national and European Union level, which are in force in the areas of
employment conditions and safety at work should apply during performance of a
concession, providing that such rules, and their application, comply with Union
law. In cross-border situations, where workers from one Member State provide
services in another Member State for the purpose of performing a concession, Directive
96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services[11] lays down the minimum
conditions which must be observed by the host country in respect of such posted
workers.

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

(34)
It is necessary to clarify the conditions under
which modifications of a concession during its execution require a new award
procedure, taking into account the relevant case-law of the Court of Justice of
the European Union. A new award procedure is required in case of material
changes to the initial concession, demonstrating the intention of the parties
to renegotiate essential terms or conditions of that concession. This is
notably the case if the amended conditions would have had an influence on the
outcome of the procedure, had they been part of the initial procedure. An
exceptional and temporary extension of the term of the concession strictly
aimed at ensuring the continuity of the provision of the service pending the
award of a new concession should not normally qualify as a material change to
the initial concession.

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

(36)
In line with the principles of equal treatment
and transparency, the successful tenderer should not be replaced by another
economic operator without reopening the concession to competition. However, the
successful tenderer performing the concession may undergo certain structural
changes during the performance of the concession, such as purely internal
reorganisations, mergers and acquisitions or insolvency or be substituted on
the basis of a contractual clause known to all tenderers and in line with the
principles of equal treatment and transparency. Such structural changes should
not automatically require new award procedures for all concessions performed by
that undertaking.

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

(38)
In order to adapt to rapid technical and
economic developments, the power to adopt acts in accordance with Article 290
of the Treaty should be delegated to the Commission in respect of a number of non-essential elements of this Directive. In
fact, the technical details and characteristics of the devices for
electronic receipt should be kept up to date with technological developments
and administrative needs; it is also necessary to empower the Commission to
make mandatory technical standards for electronic communication to ensure the
interoperability of technical formats, processes and messaging in concession
award procedures conducted using electronic means of communication taking into
account technological developments and administrative needs. Furthermore, the
list of legislative acts of the Union establishing common methodologies for the
calculation of life-cycle costs should be quickly adapted to incorporate the
measures adopted on a sectoral basis. In order to satisfy these needs, the
Commission should be empowered to keep the list of legislative acts including
LCC methodologies up-to date.

(39)
In order to ensure adequate judicial protection
of candidates and tenderers in the concession award procedures, as well as to
make effective the enforcement of the rules of this Directive and of the Treaty
principles, Council Directive 89/665/EEC on the coordination of the laws,
regulations and administrative provisions relating to the application of review
procedures to the award of public supply and public works contracts[12] and Council Directive
92/13/EEC coordinating the laws, regulations and administrative provisions
relating to the application of Community rules on the procurement procedures of
entities operating in the water, energy, transport and telecommunications
sectors[13]
should also apply to services concessions and to works concessions awarded by
both contracting authorities and contracting entities. Directives 89/665/EEC
and 92/13/EEC should, therefore, be amended accordingly.

(40)
The processing of personal data pursuant to this
Directive should be governed by Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free movement of such data[14].

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

(42)
It is of particular importance that the
Commission carry out appropriate consultations during its preparatory work,
including at expert level. The Commission, when preparing and drawing-up
delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and Council.

(43)
In order to ensure uniform conditions for the
implementation of this Directive; the procedure for drawing up and transmission
of notices and for sending and publishing data referred to in Annexes IV to VI,
the amendment of the thresholds implementing powers should be conferred on the
Commission. Those powers should be exercised in accordance with Regulation (EU)
182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control
by the Member States of the Commission's exercise of implementing powers[15]. The advisory procedure should
be used for the adoption of implementing acts, which do not have any impact
either from the financial point of views or on the nature and scope of
obligations stemming from this Directive. On the contrary, these acts
characterised by a mere administrative purpose and serve to facilitate the
application of the rules set by this Directive.

(44)
In accordance with the Joint Political
Declaration of Member States and the Commission on explanatory documents of
[date], Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a Directive and the
corresponding parts of national transposition instruments. With regard to this Directive,
the legislator considers the transmission of such documents to be justified,

HAVE ADOPTED THIS DIRECTIVE:

Directive on
concessions

Table of contents

TITLE I: Definitions, General
Principles and Scope

CHAPTER I: Definitions, general
principles and scope

SECTION 1: Definitions
and scope

Article 1: Subject-matter and scope

Article 2: Definitions

Article 3: Contracting authorities

Article 4: Contracting entities

Article 5: Thresholds

Article 6: Methods for calculating the
estimated value of concessions

Article 7: General Principles

SECTION II: EXCLUSIONS

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

Article 9: Specific exclusions in the field of
telecommunications

Article 10: Exclusions applicable to
concessions awarded by contracting entities

Article 11: Concessions awarded to an
affiliated undertaking

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

Article 13: Notification of information

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

Article 15: Relations between public
authorities

SECTION III: General
provisions

Article 16: Duration of the concession

Article 17: Social and other specific services

Article 18: Mixed  concessions

Article 19: Concessions covering several
activities

SECTION IV: Specific
situations

Article 20: Reserved concessions

Article 21: Research and development services

CHAPTER II: Principles

Article 22: Economic operators

Article 23: Nomenclatures

Article 24: Confidentiality

Article 25: Rules applicable to communication

TITLE II: RULES ON CONCESSIONS

CHAPTER I: Publication and Transparency

Article 26: Concession notices

Article 27: Concession award notices

Article 28: Form and manner of publication of
notices

Article 29: Publication at national level

Article 30: Electronic availability of
concession documents

CHAPTER II: Conduct of the procedure

SECTION 1: JOINT CONCESSIONS, TIME LIMITS AND
TECHNICAL SPECIFICATIONS

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

Article 32: Technical specifications

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

SECTION II: CHOICE OF PARTICIPANTS AND AWARD OF
CONCESSIONS

Article 34: General principles

Article 35: Procedural guarantees

Article 36: Selection of and qualitative
assessment of candidates

Article 37: Setting time limits

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

Article 39: Concession award criteria

Article 40: Life cycle and life-cycle costing

TITLE III: RULES ON PERFORMANCE OF
CONCESSIONS

Article 41: Subcontracting

Article 42: Modification of concessions during
their term

Article 43: Termination of concessions

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

Article 44: Amendments to Directive 89/665/EEC

Article 45: Amendments to Directive 92/13/EEC

TITLE V: DELEGATED POWERS, IMPLEMENTING
POWERS AND FINAL PROVISIONS

Article 46: Exercise of the delegation of
powers

Article 47: Urgency procedure

Article 48: Committee Procedure

Article 49: Transposition

Article 50: Transitional provisions

Article 51: Review

Article 52: Entry into force

Article 53: Addressees

ANNEXES

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

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

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

ANNEX IV: INFORMATION
TO BE INCLUDED IN CONCESSION NOTICES

ANNEX V:
INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES

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

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

ANNEX VIII:
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

ANNEX IX:
FEATURES CONCERNING PUBLICATION

ANNEX X:
SERVICES REFERRED TO IN ARTICLE 7

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

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

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

TITLE I
Definitions, General
Principles and Scope

CHAPTER I
Definitions, general principles and scope

Section I
Definitions and scope

Article 1
Subject-matter and scope

1.
This Directive establishes rules on the procedures
for procurement by contracting authorities and by contracting entities with
respect to concessions whose value is estimated to be not less than the thresholds
laid down in Article 5.

2.
This Directive applies to the acquisition of works
or services, including supplies which are incidental to the subject matter of a
concession, from economic operators chosen by either of the following:

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

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

Article 2
Definitions

1.
For the purposes of this Directive the following
definitions shall apply:

(1)
'concessions' means
public works concessions, works concessions or services concessions.

(2)
a 'public works
concession' means a contract for pecuniary interest concluded in writing between one or more
economic operators and one or more contracting authorities and having as their
object the execution of works, where the consideration for the the works to be carried out consists either
solely in the right to exploit the works that are the
subject of the contract or in that right together with
payment.

(3)
‘written’ or ‘in writing’ means any expression consisting of words or figures
which can be read, reproduced and subsequently communicated. It may include
information which is transmitted and stored by electronic means.

(4)
'works concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting
entities and having as their object the execution of works, where the
consideration for the the works to be carried out consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment;

(5)
'execution of works’
means the execution, or both the design and execution, of works related to one
of the activities referred to in Annex I or of a work, or the realisation, by
whatever means, of a work corresponding to the requirements specified by the
contracting authority exercising a decisive influence on the type or design of
the work.

(6)
‘work’ means the outcome of building or civil
engineering works taken as a whole which is sufficient in itself to fulfil an
economic or technical function.

(7)
'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting
authorities or contracting entities and having as their object the provision of
services other than those referred to in points 2 and 4 where the consideration
for the services to be provided consists either solely in the right to exploit
the services that are subject of the contract or in that right together with
payment.

(8)
'candidate’ means an economic operator that has sought an invitation or has
been invited to take part in a concession award procedure ;

(9)
'concessionaire’ means an economic operator
which has been awarded a concession.

(10)
"economic operator’ means any natural or
legal person, or public entity, or a group of such persons and/or entities
which offers the execution of works and/or a work, supplies or services on the
market.

(11)
'tenderer’ means an economic operator that has
submitted a tender

(12)
‘electronic means’ means using electronic
equipment for the processing (including digital compression) and storage of
data which is transmitted, conveyed and received by wire, by radio, by optical
means or by other electromagnetic means.

(13)
'concession documents’ means all documents
produced or referred to by the contracting authority or contracting entity to
describe or determine elements of the procurement or the procedure, including
the contract notice, the technical specifications, proposed conditions of
contract, formats for the presentation of documents by candidates and
tenderers, information on generally applicable obligations and any additional
documents.

(14)
‘life cycle’ means all consecutive and/or
interlinked stages, including production, transport, use and maintenance,
throughout the existence of a product or a works or the provision of a service,
from raw material acquisition or generation of resources to disposal, clearance
and finalisation.

2.
The right to exploit the works or services as
referred to in points 2, 4 and 7 of the first paragraph shall impliy the
transfer to the concessionaire of the substantial operating risk. The
concessionaire shall be deemed to assume the substantial operating risk where
it is not guaranteed to recoup the investments made or the costs incurred in
operating the works or the services which are the subject-matter of the
concession.

That economic risk may consist in either of the
following:

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

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

Article 3
Contracting authorities

1.
For the purposes of this Directive ‘Contracting
authorities’ are State, regional or local authorities, bodies governed by
public law, associations formed by one or more such authorities or one or more
such bodies governed by public law, other than those awarding a concession for
the purpose of pursuing an activity as refrred to in Annex III..

2.
'Regional authorities’ include all authorities
of the administrative units falling under NUTS 1 and 2, as referred to by
Regulation No. (EC) 1059/2003 of the European Parliament and of the Council[16].

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

4.
'Bodies governed by public law’ means bodies
that have all of the following characteristics:

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

(b)     they have legal personality;

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

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

Article 4
Contracting entities

1.
For the purposes of this Directive ,
"Contracting entities" are one of the following:

(1)
state, regional or local authorities, bodies
governed by public law, associations formed by one or more such authorities or
one or more such bodies governed by public law as defined in paragraphs 2-4 of Article
3.

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

(3)
entities which are not contracting authorities
or public undertakings, operating on the basis of special or exclusive rights
granted by a competent authority of a Member State

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

2.
A ‘public undertaking’ is any undertaking over
which the contracting authorities may exercise directly or indirectly a
dominant influence by virtue of their ownership of it, their financial
participation therein, or the rules which govern it.

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

(a)     hold the majority of the undertaking's
subscribed capital, or

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

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

3.
‘Special or exclusive rights’ mean rights
granted by a competent authority of a Member State by way of any legislative,
regulatory or administrative provision the effect of which is to limit the
exercise of activities defined in Annex III to one or more entities, and which
substantially affects the ability of other entities to carry out such activity.

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

 (a)    procurement
procedures with a prior call for competition in conformity with Directive
[2004/18/EC or 2004/17/EC] or this Directive

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

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

Article 5
Thresholds

1.
This Directive shall apply to the following
concessions the value of which is equal to or greater than EUR 5 000 000:

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

(b)     concessions concluded by contracting
authorities.

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

Article 6
Methods for calculating the estimated value of concessions

1.
The calculation of the estimated value of a
concession shall be based on the total amount payable, net of VAT, as estimated
by the contracting authority or the contracting entity, including any form of
option and any extension of the duration of the concession.

2.
The estimated value of a concession shall be
calculated as the value of an  entirety of works or services, even if purchased
through different contracts, where the contracts are part of one single
project. Indications for the existence of one single project consist in overall
prior planning and conception by the contracting authority or contracting
entity, the fact that the different elements purchased fulfil a single economic
and technical function or that they are otherwise logically interlinked.

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

3.
The choice of the method used to calculate the
estimated value of a concession shall not be made with the intention of
excluding it from the scope of this Directive. A works project or an entirety
of services shall not be subdivided with the effect of preventing it from
falling within the scope of this Directive, unless justified by objective
reasons.

4.
This estimate shall be valid at the moment at
which the concession notice is sent, or, in cases where such notice is not
foreseen, at the moment at which the contracting authority or the contracting
entity commences the concession award procedure, in particular by defining the
essential characteristics of the intended concession.

5.
With regard to public works concessions and
works concessions, calculation of the estimated value shall take account of
both the cost of the works and the total estimated value of the supplies and
services that are made available to the contractor by the contracting
authorities or entities provided that they are necessary for executing the
works.

6.
Where a proposed work or purchase of services
may result in concessions being awarded at the same time in the form of
separate lots, account shall be taken of the total estimated value of all such
lots.

7.
Where the aggregate value of the lots is equal
to or exceeds the threshold laid down in Article 5, this Directive shall apply
to the awarding of each lot.

8.
Contracting authorities or contracting entities
may award concessions for individual lots without applying the provisions on
the award provided for under this Directive, provided that the estimated value
net of VAT of the lot concerned is less than EUR 1 million. However, the
aggregate value of the lots thus awarded without applying this Directive shall
not exceed 20% of the aggregate value of all the lots into which the proposed
work or the proposed purchase of services has been divided.

9.
The value of services concessions shall be the
estimated total value of services to be provided by the concessionaire during
the whole duration of the concession, calculated in accordance with an
objective methodology which shall be specified in the concession notice or in
the concession documents.

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

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

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

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

10.
The value of concessions shall include both the
estimated revenue to be received from third parties and the amounts to be paid
by the contracting authority or the contracting entity.

Article 7
General Principles

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

Section II
Exclusions

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

1.
This Directive shall not apply to services concessions
awarded by a contracting authority or by a contracting entity to an economic
operator which is a contracting entity or an association of thereof, on the
basis of an exclusive right that economic operator enjoys pursuant to
applicable and published national law, regulation or administrative provision,
and which has been granted in accordance with the Treaty and  Union sectoral
legislation concerning the management of networks infrastructure related to the
activities set out in annex III.

2.
By way of derogation
from paragraph 1 of this Article, where sectoral legislation referred to in
paragraph 1 of this Article does not provide for sector
specific transparency obligations, the requirements of Article 27 (1) and (3)
shall apply

3.
This Directive shall not apply to concessions
which the contracting authority or a contracting entity is obliged to award or organise in accordance with procurement procedures
set out in:

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

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

(c)     the particular procedure of an
international organisation.

(d)     where the concessions are fully
financed by an international organisation or international financing
institution.

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

For the purposes of point (d) of the first
subparagraph, where a concession is co-financed for a considerable part by an
international organisation or international financing institution the parties
decide on applicable concession award procedures which shall be in conformity
with the provisions of the Treaty on the Functioning of the European Union.

4.
Subject to Article 346 of the Treaty , this
Directive shall not apply to the awarding of concessions in the fields of
defence and security to the extent that the protection of the essential
security interests of a Member State cannot be guaranteed by the rules provided
for in this Directive.

5.
This Directive shall not apply to service concessions for:

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

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

(c)     arbitration and conciliation services;

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

(e)     employment contracts;

(f)      Air transport services based on the
grant of an operating licence within the meaning of Regulation (EC) 1008/2008[17] of the European Parliament 
and of the Council [18];

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

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

Article 9
Specific exclusions in the field of electronic communications

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

For the purposes of this Article:

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

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

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

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

Article 10
Exclusions applicable to concessions awarded by contracting entities

1.
This Directive shall not apply to concessions
awarded by contracting entities for purposes other than the pursuit of their
activities as described in Annex III or for the pursuit of such activities in a
third country, in conditions not involving the physical use of a network or
geographical area within the Union.

2.
Contracting entities shall notify the Commission
or the national oversight body at their request of any activities which they
regard as excluded. The Commission may periodically publish in the Official
Journal of the European Union for information purposes, lists of the
categories of activities which it considers to be covered by this exclusion. In
so doing, the Commission shall respect any sensitive commercial aspects that
the contracting entities may point out when forwarding this information.

Article 11
Concessions awarded to an affiliated undertaking

1.
For the purposes of this Article,
"affiliated undertaking" means any undertaking the annual account of
which are consolidated with those of the contracting entity in accordance with
the requirements of the Seventh Council Directive 83/349/EEC[20].

2.
In the case of entities not subject to that Directive, "affiliated undertaking"
shall mean any undertaking that
:

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

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

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

3.
Article 15
notwithstanding and provided that the conditions in paragraph 4 are met, this Directive
shall not apply to the following concessions:

(a)     concessions awarded by a contracting
entity to an affiliated undertaking;

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

4.
Paragraph 3 shall apply:

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

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

5.
Where, because of the date on which an
affiliated undertaking was created or commenced activities, the turnover is not available for the preceding
three years, it shall be sufficient for that undertaking to show that the
turnover referred to in points (a) or (b)  of paragraph 4   is credible,
particularly by means of business projections.

6.
Where more than one undertaking affiliated with
the contracting entity provides the same or similar services, supplies or
works, the above percentages referred to in paragraph 4 shall be calculated
taking into account the total turnover deriving respectively from the provision
of services, supplies or works
by those affiliated undertakings.

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

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

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

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

Article 13
Notification of information by contracting entities

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

(a)     the names of the undertakings or joint
ventures concerned,

(b)     the nature and value of the
concessions involved,

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

Article 14
Exclusion of activities which are directly exposed to competition

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

Article 15
Relations between public authorities

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

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

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

c)         there is no private participation in the controlled legal
person

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

2.
Paragraph 1 also applies where a controlled
entity which is a contracting authority or contracting entity as referred to in
paragraph 1 subparagraph 1 of Article 4 awards a concession to its controlling
entity, or to another legal person controlled by the same contracting
authority, provided that there is no private participation in the legal person
being awarded the public concession.

3.
A contracting authority or a contracting entity
as referred to in paragraph 1 subparagraph 1 of Article 4, which does not
exercise over a legal person control within the meaning of paragraph 1, may
nevertheless award a concession without applying the provisions of the current Directive
to a legal person which it controls jointly with other such contracting
authorities or entities, where the following conditions are fulfilled:

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

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

c)         there is no private participation in the controlled legal
person.

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

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

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

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

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

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

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

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

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

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

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

5.
The absence of private participation referred to
in paragraphs 1 to 4 shall be verified at the time of the award of the
concession or of the conclusion of the agreement.

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

Section III
General provisions

Article 16
Duration of the concession

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

Article 17
Social and other specific services

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

Article 18
Mixed  concessions

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

2.
Concessions which have as their object both
services within the meaning of Article 17 and other services shall be awarded
in accordance with the provisions applicable to the type  of service that
characterises the main object of the contract in question.

3.
In the case of mixed contracts referred to in
paragraphs 1 and 2, the main object shall be determined by a comparison of the
values of the respective services or supplies.

4.
Where contracts have as their object concessions
covered by this Directive as well as procurement or other elements not covered
by it nor by Directives [replacing 2004/17/EC and Directive 2004/18] or
2009/81/EC, the part of the contract which constitutes a concession covered by
this Directive shall be awarded in accordance with this Directive.  However, when
the different parts of the contract are objectively not separable, the
application of this Directive shall be determined on the basis of the main subject
of that contract.

5.
In the case of concessions subject to this Directive
and contracts subject to [Directive 2004/18/EC or 2004/17/EC] or 2009/81/EC[21], the part of the contract
which constitutes a concession covered by this Directive shall be awarded in
accordance with the provisions thereof.

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

Article 19
Concessions covering several activities

1.
A concession which is intended to cover several
activities shall be subject to the rules applicable to the activity for which
it is principally intended.

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

2.
Where one of the activities for which the
concession subject to the provisions of this Directive is intended is listed in
Annex III and the other is not listed therein and where it is objectively
impossible to determine for which activity the concession is principally
intended, the concession shall be awarded in accordance with the provisions
applicable to concessions awarded by contracting authorities.

3.
If one of the activities for which the contract
or the concession is intended is subject to this Directive and the other is not
subject to either this Directive or [Directive 2004/18/EC or 2004/17/EC] or
2009/81/EC[22]and
if it is objectively impossible to determine for which activity the contract or
the concession is principally intended, the contract or the concession shall be
awarded in accordance with this Directive.

Section IV
Specific situations

Article 20
Reserved concessions

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

Article 21
Research and development services

1.
This Directive shall apply to service
concessions for research and development services with CPV reference numbers
73000000-2 to 73436000-7, except 73200000-4, 73210000-7 or 73220000-0, provided
that the following conditions are both fulfilled:

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

(b)       the service provided is wholly remunerated by the
contracting authority or contracting entity

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

3.
The Commission shall be empowered to adopt
delegated acts in accordance with Article 46 concerning the reference numbers
of this Article, whenever changes in the CPV nomenclature must be reflected in
this Directive and they do not imply a modification of the scope of this Directive.

CHAPTER II
Principles

Article 22
Economic operators

1.
Economic operators that, under the law of the
Member State in which they are established, are entitled to provide the
relevant service, shall not be rejected solely on the ground that, under the
law of the Member State in which the concession is awarded, they would be
required to be either natural or legal persons.

2.
However, legal persons may be required to
indicate in the tender or the application, the names and relevant professional
qualifications of the staff to be responsible for the performance of the
concession in question.

3.
Groups of economic operators may submit tenders
or put themselves forward as candidates.

4.
Contracting authorities and contracting entities
shall not establish specific conditions for participation of such groups in concession
award procedures which are not imposed on individual candidates. In order to
submit an application or a tender, these groups shall not be required by the
contracting authorities or contracting entities to assume a specific legal
form.

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

Article 23
Nomenclatures

1.
Any references to nomenclatures in the context
of the award of concessions shall be made using the ‘Common Procurement
Vocabulary (CPV)’ as adopted by Regulation (EC) No 2195/2002[23].

2.
The Commission shall be empowered to adopt
delegated acts in accordance with Article 46 to adapt the reference numbers
used in Annex I and X, whenever changes in the CPV nomenclature must be
reflected in this Directive and they do not imply a modification of the scope
of this Directive.

Article 24
Confidentiality

1.
Unless otherwise provided in this Directive or
in the national law concerning access to information, and without prejudice to
the obligations relating to the advertising of awarded contracts and to the
information to candidates and tenderers set out in Articles 27 and 35 of this Directive,
the contracting authority shall not disclose information forwarded to it by
economic operators which they have designated as confidential, including, but
not limited to, technical or trade secrets and the confidential aspects of
tenders.

2.
Contracting authorities or contracting entities
may impose on economic operators requirements aimed at protecting the
confidential nature of information which the contracting authorities or
contracting entities make available throughout the concession award procedure.

Article 25
Rules applicable to communication

1.
Except where use of electronic means is
mandatory pursuant to Articles 28 (2) and 30 of this Directive contracting
authorities and contracting entities may choose between the following means of
communication for all communication and information exchange:

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

(b)     post or fax;

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

(d)     a combination of those means.

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

2.
The means of communication chosen must be
generally available and not restrict economic operators' access to the concession
award procedure.

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

3.
The tools to be used for communicating by
electronic means, as well as their technical characteristics, shall be
non-discriminatory, generally available and interoperable with the information
and communication technology products in general use and shall not restrict
economic operators' access to the concession award procedure. The technical
details and characteristics of the devices for the electronic receipts to be
deemed in compliance with the first subparagraph of this paragraph are set out in
Annex XII

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

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

4.
Contracting authorities and contracting entities
may, where necessary, require the use of tools which are not generally
available, provided that they offer alternative means of access.

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

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

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

(c)
support an alternative channel for electronic
submission of tenders.

5.
The following rules shall apply to devices for
the electronic transmission and receipt of tenders and for the electronic transmission
and receipt of applications:

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

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

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

d)      where advanced Electronic Signatures
as defined by Directive 1999/93/EC[24]
of the European Parliament and of the Council are required, contracting
authorities and contracting entities shall accept signatures supported by a
qualified electronic certificate referred to in the Trusted List provided for
in the European Commission Decision 2009/767/EC[25], created with or without a
secure signature creation device, subject to compliance with the following
conditions:

(i)      they must establish the required
advanced signature format on the basis of formats established in Commission
Decision 2011/130/EU[26]
and put in place necessary measures to be able to process these formats
technically;

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

6.
The following rules shall apply to the
transmission of applications to participate:

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

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

For the purposes of point (b), the contracting
authority or entity shall indicate in the concession notice or in the
invitation to confirm interest that it requires applications to participate
made by fax to be confirmed by post or by electronic means and the time limit
for sending such confirmation

7.
Member States shall ensure that, at the latest 5
years after the date provided for in Article 49 (1), all procedures for the
award of concessions under this Directive are performed using electronic means
of communication, in particular e-submission, in accordance with the
requirements of this Article.

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

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

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

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

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

8.
Contracting authorities may use the data
processed electronically for public procurement procedures in order to prevent,
detect and correct errors occuring at each stage by developing appropriate
tools.

TITLE II
RULES ON THE AWARD OF CONCESSIONS

CHAPTER I
Publication and Transparency

Article 26
Concession notices

1.
Contracting authorities and contracting entities
wishing to award a concession shall make known their intention by means of a
concession notice.

2.
Concession notices shall contain the information
referred to in part of Annex IV and, where appropriate, any other information
deemed useful by the contracting authority or entity, in accordance with the format
of standard forms.

3.
Contracting authorities and contracting entities
wishing to award a concession for social and other specific services shall make
known their intention of planned concession award through the publication of a
prior information notice as soon as possible after the beginning of the
budgetary year. Those notices shall contain the information set out in Annex
XIII.

4.
The Commission shall establish those standard
forms. Those implementing acts shall be adopted in accordance with the advisory
procedure referred to in Article 48.

5.
By way of derogation from paragraph 1, the contracting authorities and entities shall not be
required to publish a concession notice in any of the following cases:

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

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

(c)     for new works or services consisting
in the repetition of similar works or services entrusted to the economic
operator to which the same contracting authorities or contracting entities
awarded an original concession subject to the obligation referred to in
paragraph 1, provided that such works or services are in conformity with a
basic project for which the original concession was awarded. The basic project
shall mention the extent of possible additional works or services and the
conditions under which they will be awarded.

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

6.
For the purposes of point (a) of the first subparagraph, a tender shall be considered
not to be suitable where:

- it is irregular or unacceptable, and

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

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

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

(a)     where they have been received late;

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

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

(d)     they have been found to be abnormally
low

Article 27
Concession award notices

1.
Not later than 48 days after the award of a
concession, contracting authorities and contracting entities shall send a
concession award notice on the results of the concession award procedure.

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

3.
Such notices shall contain the information set
out in Annex V or in relation to concessions for social services and other
specific services the information set out in VI  and be published in accordance
with the provisions of Article 28

Article 28
Form and manner of publication of notices

1.
The notices referred to in Articles 26 and 27 and
the second subparagraph of Article 43(6) shall include the information set out
Annexes IV to VI and in the format of standard forms, including standard forms
for corrigenda.

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

2.
The notices shall be drawn up, transmitted by
electronic means to the Commission and published in accordance with Annex IX.
Notices shall be published not later than five days after they are sent. The
costs of publication of the notices by the Commission shall be borne by the
Union.

3.
The notices referred to in Article 26 shall be
published in full in an official language of the Union as chosen by the
contracting authority or contracting entity. That language version shall
constitute the sole authentic text. A summary of the important elements of each
notice shall be published in the other official languages.

4.
Contracting authorities and contracting entities
entities shall be able to supply proof of the dates on which notices are
dispatched.

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

5.
Contracting authorities and contracting entities
may publish notices for concessions that are not subject to the publication
requirements laid down in this Directive provided those notices are sent to the
Commission by electronic means in accordance with the format and procedures for
transmission indicated in Annex IX.

Article 29
Publication at national level

1.
Notices referred to in Articles 26 and 27 and
the information contained therein shall not be published at national level before
the publication pursuant to Article 28.

2.
Notices published at national level shall not
contain information other than that contained in the notices dispatched to the
Commission but shall indicate the date of dispatch of the notice to the
Commission.

Article 30
Electronic availability of concession documents

1.
Contracting authorities and contracting entities
shall offer unrestricted and full direct access free of charge by electronic
means to the concession documents from the date of publication of the notice in
accordance with Article 28 or the date on which the invitation to submit
tenders is sent. The text of the notice or of these invitations shall specify
the internet address at which this documentation is accessible.

2.
Provided that it has been requested in good
time, the contracting authorities and contracting entities or competent
departments shall supply additional information relating to the concession
documents not later than six days before the deadline fixed for the receipt of
tenders.

CHAPTER II
Conduct of the procedure

Section I
Joint concessions, time limits and technical specifications

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

1.
Without prejudice to Article 15, contracting
authorities or contracting entities from different Member States may jointly
award public concessions by using one of the means described in this Article.

2.
Several contracting authorities or contracting
entities from different Member States may jointly award a concession. In that
case, the participating contracting authorities or contracting entities shall
conclude an agreement that determines

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

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

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

3.
Where several contracting authorities or
contracting entities from different Member States have set up a joint legal entity,
including European Groupings of territorial cooperation under Regulation (EC)
N° 1082/2006 of the European Parliament and of the Council[27], the participating contracting
authorities or participating contracting entities shall, by a decision of the
competent body of the joint legal entity, agree on the applicable national concession
award rules of one of the following Member States:

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

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

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

4.
In the absence of an agreement determining the
applicable concession rules, the national legislation governing the concession
award shall be determined following the rules set out below:

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

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

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

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

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

5.
In the absence of an agreement determining the
applicable concession award law under paragraph 3, the national legislation
governing concession award procedures conducted by joint legal bodies set up by
several contracting authorities or contracting entities from different Member
States shall be determined following the following rules:

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

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

(c)     where it is not possible to determine
the applicable national law pursuant to points (a) or (b) of paragraph 4, the
contracting authorities or contracting entities shall apply the national
provisions of the Member State where the legal body has its registered office.

6.
One or more contracting authorities or one or
more contracting entities may award individual concessions under a framework
agreement concluded by or jointly with a contracting authority located in
another Member State, provided that the framework agreement contains specific
provisions enabling the respective contracting authority or contracting
authorities or to award contracting entity or contracting entities the
individual concessions.

7.
Decisions on the award of concessions in
cross-border concession award shall be subject to the ordinary review
mechanisms available under the national law applicable.

8.
In order to enable the effective operation of
review mechanisms, Member States shall allow the decisions of review bodies within
the meaning of Council Directive 89/665/EEC[28]
and of Council Directive 92/13/EEC located in other Member States to be fully
executed in their domestic legal order, where such decisions involve
contracting authorities or contracting entities established on their territory
participating in the relevant cross-border concession award procedure.

Article 32
Technical specifications

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

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

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

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

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

2.
Technical specifications shall guarantee equal
access of economic operators to the concession award procedure and not have the
effect of creating unjustified obstacles to the opening up of concession award
to competition.

3.
Without prejudice to mandatory national
technical rules, to the extent that they are compatible with Union law, the
technical specifications shall be formulated in one of the following ways:

(a)     in terms of performance or functional
requirements, including environmental characteristics, provided that the
parameters are sufficiently precise to allow tenderers to determine the
subject-matter of the contract and to allow contracting authorities or
contracting entities to award the contract;

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

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

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

4.
Unless justified by the subject-matter of the
contract, technical specifications shall not refer to a specific make or
source, or a particular process, or to trade marks, patents, types or a
specific origin or production with the effect of favouring or eliminating
certain undertakings or certain products. Such reference shall be permitted on
an exceptional basis, where a sufficiently precise and intelligible description
of the subject-matter of the contract pursuant to paragraph 3 is not possible;
such reference shall be accompanied by the words "or equivalent".

5.
Where a contracting authority or contracting
entity uses the option of referring to the specifications referred to in point
(b) of paragraph 3, it shall not reject a tender on the grounds that the works,
supplies and services tendered for do not comply with the specifications to
which it has referred, once the tenderer proves in its tender by whatever
appropriate means including the means of proof referred to in Article 33 that
the solutions it proposes satisfy in an equivalent manner the requirements
defined by the technical specifications.

6.
Where a contracting authority or contracting
entity uses the option laid down in point (a) of paragraph 3 to formulate
technical specifications in terms of performance or functional requirements, it
shall not reject a tender for works, supplies or services which comply with a
national standard transposing a European standard, a European technical
approval, a common technical specification, an international standard or a
technical reference system established by a European standardisation body,
where these specifications address the performance or functional requirements
which it has laid down.

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

Article 33
Test reports, certification and other means of proof

1.
Contracting authorities or contracting entities
may require that economic operators provide a test report from a recognised
body or a certificate issued by such a body as means of proof of conformity
with the technical specifications.

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

2.
Contracting authorities or contracting entities
shall also accept other appropriate means of proof such as a technical dossier
of the manufacturer where the economic operator concerned has no access to the
certificates or test rapports referred to in paragraph 1, or no possibility of
obtaining them within the relevant time limits.

3.
Recognised bodies, within the meaning of this
Article, are test and calibration laboratories and any certification and
inspection bodies accredited in accordance with Regulation (EC) No 765/2008 of
the European Parliament and of the Council[29].

4.
Member States shall make available to other
Member States, upon request, any information related to the evidence and
documents produced to prove compliance with the technical requirements referred
to in Article 32 and this Article. The competent authorities of the Member
State of establishment shall provide this information in accordance with
provisions on governance as referred to in Article 88 of (Directive replacing Directive
2004/18/EC).

Section II
Choice of participants and award of concessions

Article 34
General principles

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

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

(b)     the tender comes from a tenderer who

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

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

Article 35
Procedural guarantees

1.
Contracting authorities and contracting entities
shall indicate in the contract notice, in the invitation to submit tenders or
in the concession documents a description of the concession, the award criteria
and the minimum requirements to be met. This information must allow to identify
the nature and scope of the concession, enabling economic operators to decide
whether they request to participate in the concession award procedure. The
description, award criteria and minimum requirements shall not be changed in
the course of the negotiations.

2.
During the concession award, contracting
authorities and contracting entities shall ensure the equal treatment of all
tenderers. In particular, they shall not provide information in a
discriminatory manner which may give some tenderers an advantage over others.

3.
Whenever the contracting authority or contracting
entity limits the number of applicants to an appropriate level, this shall be
done in a transparent manner and on the basis of objective criteria which are
available to all interested economic operators.

4.
The rules on the organisation of the concession
award procedure, including rules on communication, on the stages of the
procedure and on timing, shall be established in advance and communicated to
all participants

5.
Where the concession award involves negotiation,
contracting authorities or contracting entities shall comply with the following
rules:

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

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

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

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

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

6.
Contracting authorities and contracting entities
shall as soon as possible inform each candidate and tenderer of decisions
reached concerning the award of a concession including the grounds for any
decision not to award a contract for which there has been publication of a
concession notice or to recommence the procedure.

7.
On request from the party concerned, the
contracting authority shall as quickly as possible, and in any case within 15
days from receipt of a written request, inform:

(a)     any unsuccessful candidates of the
reasons for the rejection of their application,

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

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

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

8.
However, contracting authorities may decide to
withhold certain information referred to in paragraph 6, regarding the contract
where the release of such information would impede law enforcement, would
otherwise be contrary to the public interest, would prejudice the legitimate
commercial interests of economic operators, whether public or private, or might
prejudice fair competition between them.

Article 36
Selection of and qualitative assessment of candidates

1.
Contracting authorities shall specify, in the
concession notice the conditions for participation relating to:

(a)
suitability to pursue the professional activity;

(b)
economic and financial standing;

(c)
technical and professional ability.

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

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

2.
With regard to the criteria referred to in paragraph
1, an economic operator may, where appropriate and for a particular concession,
rely on the capacities of other entities, regardless of the legal nature of its
links with them. It shall, in that case, prove to the contracting authority or
the contracting entity that it will have at its disposal, throughout the period
of the concession, the necessary resources, for example, by producing an
undertaking by those entities to that effect. With regard to economic and
financial standing, contracting authorities and contracting entities may
require that the economic operator and those entities are jointly liable for
the execution of the contract.

3.
Under the same conditions, a group of economic
operators as referred to in Article 22 may rely on the capacities of
participants in the group or of other entities.

4.
Member States shall adopt rules combating
favouritism, corruption and preventing conflicts of interest, aimed at ensuring
the transparency of the award procedure and the equal treatment of all
tenderers.

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

5.
Any candidate or tenderer that has been the
subject of a conviction by a final judgment for one of the reasons listed below
shall be excluded from participation in a concession:

(a)     participation in a criminal
organisation, as defined in Article 2(1) of Council Framework Decision
2008/841/JHA[30];

(b)     corruption, as defined in Article 3 of
the Convention on the fight against   corruption involving officials of the
European Communities or officials of Member States of the European Union  and
Article 2 of Council Framework Decision 2003/568/JHA[31] as well as corruption as
defined in the national law of the contracting authority or the economic
operator;

(c)     fraud within the meaning of Article 1
of the Convention on the protection of the financial interests of the European
Communities[32];

(d)     terrorist offences or offences linked
to terrorist activities, as defined in Articles 1 and 3 of Framework Decision
2002/475/JHA[33]
respectively, or inciting, aiding or abetting or attempting to commit an
offence, as referred to in Article 4 of that Framework Decision;

(e)     money laundering, as defined in
Article 1 of Council Directive 91/308/EEC[34].

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

6.
Any economic operator shall be excluded from
participation in a concession where the contracting authority or contracting
entity is aware of a decision having the force of res judicata establishing
that it has not fulfilled obligations relating to the payment of taxes or
social security contributions in accordance with the legal provisions of the
country in which it is established or with those of the Member State of the
contracting authority or entity.

7.
Member States may provide that contracting
authorities or contracting entities exclude from participation in a concession
award any economic operator if one of the following conditions is fulfilled:

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

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

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

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

8.
Any candidate or tenderer that is in one of the
situations referred to in paragraphs 5 to 7 may provide the contracting
authority or contracting entity with evidence demonstrating its reliability
despite the existence of the relevant ground for exclusion.

9.
Member States shall specify the implementing
conditions for this article. They shall make available to other Member States,
upon request, any information related to the exclusion grounds listed in this Article.
The competent authorities of the Member State of establishment shall provide
this information in accordance with the provisions of Article 88 of Directive
[replacing Directive 2004/18/EC].

Article 37
Setting time limits

1.
When fixing the time limits for the submission
of applications for the concession and submission of tenders, contracting authorities
or contracting entities shall take account in particular of the complexity of
the concession and the time required for drawing up tenders, without prejudice
to the minimum time limits set out in Article 37.

2.
Where applications or tenders can be made only
after a visit to the site or after on-the-spot inspection of the documents
supporting the concession award documents, the time limits for the submission
of applications for the concession shall be extended so that all economic
operators concerned may be aware of all the information needed to produce
applications or tenders.

Article 38
Time limits for submission of applications for the concession

1.
Where contracting authorities and contracting
entities resort to a concession, the time limit for the submission of
applications for the concession shall be not less than 52 days from the date on
which the concession notice was sent.

2.
The time limit for receipt of tenders may be
reduced by five days where the contracting entity accepts that tenders may be submitted
by electronic means in conformity with Article 25.

Article 39
Concession award criteria

1.
Concessions shall be awarded on the basis of
objective criteria which ensure compliance with the principles of transparency,
non-discrimination and equal treatment and which ensure that tenders are
assessed in conditions of effective competition permitting to identify an
overall economic advantage for the contracting authority or the contracting
entity.

2.
The award criteria shall be linked to the
subject matter of the concession, and shall not confer an unrestricted freedom
of choice on the contracting authority or the contracting entity.

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

3.
The contracting authority or the contracting entity
shall indicate in the concession notice or documents the relative weighting
which it gives to each of the criteria set out in paragraph 1 or list those
criteria in descending order of importance.

4.
Member States may provide that contracting
authorities and contracting entites shall base the award of concessions on the
criterion of the most economically advantageous tender, in compliance with
paragraph 2. Those criteria may include, in addition to price or costs, any of
the following criteria

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

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

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

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

5.
In the case referred to in paragraph 4, the
contracting authority or entity shall specify in the contract notice, in the
invitation to submit a tender, or in the concession documents, the relative
weighting which it gives to each of the criteria chosen to determine the most
economically advantageous tender.

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

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

Article 40
Life-cycle costing

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

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

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

2.
Where contracting authorities assess the costs
using a life-cycle costing approach, they shall indicate in the concession
award documents the methodology used for the calculation of the life-cycle
costs. The methodology used must fulfil all of the following conditions:

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

(b)
It has been established for repeated or
continuous application;

(c)
It is accessible to all interested parties.

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

3.
Whenever a common methodology for the
calculation of life-cycle costs is adopted as part of a legislative act of the
Union, including by delegated acts pursuant to sector specific legislation, it
shall be applied where life-cycle costing is included in the award criteria
referred to in Article 39 paragraph (4).

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

TITLE III
Rules on performance of concessions

Article 41
Subcontracting

1.
In the concession documents, the contracting
authority or contracting entity may ask or may be required by a Member State to
ask the tenderer to indicate in its tender any share of the contract it may
intend to subcontract to third parties and any proposed subcontractors.

2.
Paragraph 1 shall be without prejudice to the
question of the principal economic operator’s liability.

Article 42
Modification of concessions during their term

1.
A substantial modification of the provisions of
a concession during its term shall be considered as a new award for the
purposes of this Directive and shall require a new concession award procedure
in accordance with this Directive.

2.
A modification of a concession during its term
shall be considered  substantial within the meaning of paragraph 1, where it
renders the concession substantially different from the one initially concluded,
In any case, without prejudice to paragraph 3 and 4, a modification shall be
considered substantial where one of the following conditions is met:

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

(b)
the modification changes the economic balance of
the concession in favour of the concessionaire or

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

3.
The replacement of the concessionaire shall be
considered a substantial modification within the meaning of paragraph 1.

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

4.
Where the value of a modification can be
expressed in monetary terms, the modification shall not be considered to be
substantial within the meaning of paragraph 1, where its value does not exceed
the thresholds set out in Article 5 and where it is below 5 % of the price
of the initial contract, provided that the modification does not alter the
overall nature of the contract. Where several successive modifications are
made, the value shall be assessed on the basis of the cumulative value of the
successive modifications.

5.
Concession modifications shall not be considered
substantial within the meaning of paragraph 1, where they have been provided
for in the concession documents in clear, precise and unequivocal review
clauses or options. Such clauses shall state the scope and nature of possible
modifications or options as well as the conditions under which they may be
used. They shall not provide for modifications or options that would alter the
overall nature of the concession.

6.
By way of derogation from paragraph 1, a substantial
modification shall not require a new concession award procedure where the
following cumulative conditions are fulfilled:

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

(e)
the modification  does not alter the overall nature
of the concession

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

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

7.
Contracting authorities and contracting entities
shall not have recourse to modifications of the concession in the following
cases:

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

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

Article 43
Termination of concessions

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

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

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

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

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

Article 44
Amendments to Directive 89/665/EEC

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

1.
Article 1is amended as follows:

(a)     paragraph 1 is replaced by the
following:

‘1. This Directive applies to contracts
referred to in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of
procedures for the award of public works contracts, public supply contracts and
public service contracts unless such contracts are excluded in accordance with
Articles 10 to 18 of that Directive.

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

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

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

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

2.
Article 2a(2) is amended as follows:

(a)     the first subparagraph is replaced by
the following:

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

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

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

3.
in Article 2b, point (a) is replaced by the
following:

‘(a)    if Directive 2004/18/EC or Directive
[on Concessions] does not require prior publication of a contract notice in the
Official Journal of the European Union;’;

4.
Article 2d is amended as follows:

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

‘(a)    if the contracting authority has
awarded a contract without prior publication of a contract notice in the Official
Journal of the European Union without this being permissible in accordance
with Directive 2004/18/EC or Directive [on Concessions]’;

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

‘- the contracting authority considers that the
award of a contract without prior publication of a contract notice in the Official
Journal of the European Union is permissible in accordance with Directive
2004/18/EC or Directive [on Concessions]’,

5.
Article 2f (1)(a) is amended as follows:

(a)     the first indent is replaced by the
following:

‘

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

(b)     after the first indent, the following
indent is inserted:

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

6.
In Article 3, paragraph 1 is replaced by the
following:

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

Article 45
Amendments to Directive 92/13/EEC

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

1.
Article 1(1) is amended as follows:

(a)     the first and second subparagraph is
replaced by the following:

‘This Directive applies to contracts referred
to in Directive 2004/17/EC of the European Parliament and of the Council of 31
March 2004 coordinating the procurement procedures of entities operating in the
water, energy, transport and postal services sectors (1) unless such contracts
are excluded in accordance with Article 5 (2), Articles 19 to 26, Articles 29
and 30 or Article 62 of that Directive.

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

(b)     the third subparagraph is replaced by
the following:

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

2.
Article 2a(2) is amended as follows:

(a)     the first subparagraph is replaced by
the following:

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

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

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

3.
in Article 2b, point (a) is replaced by the
following:

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

4.
Article 2c is replaced by the following:

‘Article 2c

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

5.
Article 2d is amended as follows:

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

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

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

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

6.
In Article 2f(1), point (a) is replaced by the
following:

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

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

7.
in Article 8, paragraph 1 is replaced by the
following:

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

TITLE VI
DELEGATED POWERS, IMPLEMENTING POWERS AND FINAL PROVISIONS

Article 46
Exercise of the delegation of powers

1.
The power to adopt delegated acts is conferred
on the Commission subject to the conditions laid down in this Article.

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

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

4.
As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.

5.
A delegated act adopted pursuant to this Article
shall enter into force only where no objection has been expressed either by the
European Parliament or by the Council within a period of two months of
notification of the act to the European Parliament and the Council or if,
before the expiry of that period, the European Parliament and the Council have
both informed the Commission that they will not object. That period shall be
extended by two months at the initiative of the European Parliament or the
Council.

Article 47
Urgency procedure

1.
Delegated acts adopted under this Article shall
enter into force without delay and shall apply as long as no objection is
expressed in accordance with paragraph 2. The notification of a delegated act
to the European Parliament and to the Council shall state the reasons for the
use of the urgency procedure.

2.
Either the European Parliament or the Council
may object to a delegated act in accordance with the procedure referred to in
Article 46(5). In such a case, the Commission shall repeal the act without
delay following the notification of the decision to object by the European
Parliament or the Council.

Article 48
Committee Procedure

1.
The Commission shall be assisted by the Advisory
Committee for Public Contracts established by Council Decision 71/306/EEC[35]. That committee shall be a
committee within the meaning of Regulation (EU) No 182/2011.

2.
Where reference is made to this Article, Article
4 of Regulation (EU) No 182/2011 shall apply.

Article 49
Transposition

1.
Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with this Directive
by 30 June 2014 at the latest. They shall forthwith communicate to the
Commission the text of those provisions.

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

2.
Member States shall communicate to the
Commission the text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 50
Transitional provisions

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

Article 51
Review

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

Article 52
Entry into force

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

Article 53
Addressees

This Directive is addressed to the Member
States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

ANNEX I
LIST OF THE ACTIVITIES REFERRED TO IN POINT (5) OF THE FIRST PARAGRAPH OF
ARTICLE 2[36]

NACE Rev. 1 (1) || CPV code

SECTION F || CONSTRUCTION

Division || Group || Class || Subject || Notes

45 || || || Construction || This division includes: construction of new buildings and works, restoring and common repairs. || 45000000

|| 45.1 || || Site preparation || || 45100000

|| || 45.11 || Demolition and wrecking of buildings; earth moving || This class includes: — demolition of buildings and other structures, — clearing of building sites, — earth moving: excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc. — site preparation for mining: — — overburden removal and other development and preparation of mineral properties and sites. This class also includes: — building site drainage. — drainage of agricultural or forestry land. || 45110000

|| || 45.12 || Test drilling and boring || This class includes: — test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes. This class excludes: — drilling of production oil or gas wells, see 11.20. — water well drilling, see 45.25, — shaft sinking, see 45.25, — oil and gas field exploration, geophysical, geological and seismic surveying, see 74.20. || 45120000

|| 45.2 || || Building of complete constructions or parts thereof; civil engineering || || 45200000

|| || 45.21 || General construction of buildings and civil engineering works || This class includes: — construction of all types of buildings construction of civil engineering constructions, — bridges, including those for elevated highways, viaducts, tunnels and subways, — long-distance pipelines, communication and power lines, — urban pipelines, urban communication and power lines, — ancillary urban works, — assembly and erection of prefabricated constructions on the site. This class excludes: — service activities incidental to oil and gas extraction, see 11.20, — erection of complete prefabricated constructions from self-manufactured parts not of concrete, see divisions 20, 26 and 28, — construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, see 45.23, — building installation, see 45.3, — building completion, see 45.4, — architectural and engineering activities, see 74.20, — project management for construction, see 74.20. || 45210000 Except: -45213316 45220000 45231000 45232000

|| || 45.22 || Erection of roof covering and frames || This class includes: — erection of roofs, — roof covering, — waterproofing. || 45261000

|| || 45.23 || Construction of highways, roads, airfields and sport facilities || This class includes: — construction of highways, streets, roads, other vehicular and pedestrian ways, — construction of railways, — construction of airfield runways, — construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, — painting of markings on road surfaces and car parks. This class excludes: — preliminary earth moving, see 45.11. || 45212212 and DA03 45230000 except: -45231000 -45232000 -45234115

|| || 45.24 || Construction of water projects || This class includes — construction of: — — waterways, harbour and river works, pleasure ports (marinas), locks, etc., — dams and dykes, — dredging, — subsurface work. || 45240000

|| || 45.25 || Other construction work involving special trades || This class includes: — construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment, — construction of foundations, including pile driving, — water well drilling and construction, shaft sinking, — erection of non-self-manufactured steel elements, — steel bending, — bricklaying and stone setting, — scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms, — erection of chimneys and industrial ovens. This class excludes: — renting of scaffolds without erection and dismantling, see 71.32 || 45250000 45262000

|| 45.3 || || Building installation || || 45300000

|| || 45.31 || Installation of electrical wiring and fittings || This class includes: installation in buildings or other construction projects of: — electrical wiring and fittings, — telecommunications systems, — electrical heating systems, — residential antennas and aerials, — fire alarms, — burglar alarm systems, — lifts and escalators, — lightning conductors, etc. || 45213316 45310000 Except: -45316000

|| || 45.32 || Insulation work activities || This class includes: — installation in buildings or other construction projects of thermal, sound or vibration insulation. This class excludes: — waterproofing, see 45.22. || 45320000

|| || 45.33 || Plumbing || This class includes: — installation in buildings or other construction projects of: — — plumbing and sanitary equipment, — gas fittings, — heating, ventilation, refrigeration or air-conditioning equipment and ducts, — sprinkler systems. This class excludes: — installation of electrical heating systems, see 45.31. || 45330000

|| || 45.34 || Other building installation || This class includes: — installation of illumination and signalling systems for roads, railways, airports and harbours, — installation in buildings or other construction projects of fittings and fixtures n.e.c. || 45234115 45316000 45340000

|| 45.4 || || Building completion || || 45400000

|| || 45.41 || Plastering || This class includes: — application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials. || 45410000

|| || 45.42 || Joinery installation || This class includes: — installation of not self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials, — interior completion such as ceilings, wooden wall coverings, movable partitions, etc. This class excludes: — laying of parquet and other wood floor coverings, see 45.43. || 45420000

|| || 45.43 || Floor and wall covering || This class includes: — laying, tiling, hanging or fitting in buildings or other construction projects of: — — ceramic, concrete or cut stone wall or floor tiles, — parquet and other wood floor coverings carpets and linoleum floor coverings, — including of rubber or plastic, — terrazzo, marble, granite or slate floor or wall coverings, — wallpaper. || 45430000

|| || 45.44 || Painting and glazing || This class includes: — interior and exterior painting of buildings, — painting of civil engineering structures, — installation of glass, mirrors, etc. This class excludes: — installation of windows, see 45.42, || 45440000

|| || 45.45 || Other building completion || This class includes: — installation of private swimming pools, — steam cleaning, sand blasting and similar activities for building exteriors, — other building completion and finishing work n.e.c. This class excludes: — interior cleaning of buildings and other structures, see 74.70. || 45212212 and DA04 45450000

|| 45.5 || || Renting of construction or demolition equipment with operator || || 45500000

|| || 45.50 || Renting of construction or demolition equipment with operator || This class excludes: — renting of construction or demolition machinery and equipment without operators, see 71.32. || 45500000

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

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

1.
Directive 2009/33/EC[37].

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

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

1.
As far as gas and heat are concerned:

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

(b)
the supply of gas or heat to such networks.

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

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

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

2.
As far as electricity is concerned:

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

(b)
the supply of electricity to such networks.

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

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

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

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

3.
As far as water is concerned:

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

(b)
the supply of drinking water to such networks.

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

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

(b)
the disposal or treatment of sewage.

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

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

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

4.
Activities relating to the provision or
operation of networks providing a service to the public in the field of
transport by railway, automated systems, tramway, trolley bus, bus or cable.

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

5.
Activities relating to the exploitation of a
geographical area for the purpose of the provision of airports and maritime or
inland ports or other terminal facilities to carriers by air, sea or inland
waterway.

6.
Activities relating to the provision of :

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

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

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

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

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

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

(1)
mail service management services (services both
preceding and subsequent to despatch, including "mailroom management
services"),

(2)
added-value services linked to and provided
entirely by electronic means (including the secure transmission of coded
documents by electronic means, address management services and transmission of
registered electronic mail),

(3)
services concerning postal items not included in
point (a), such as direct mail bearing no address,

(4)
financial services, as defined in the CPV under
the reference numbers from 66100000-1 to 66720000-3 and in Article 8 (5)(d) and
including in particular postal money orders and postal giro transfers,

(5)
philatelic services,

(6)
logistics services (services combining physical
delivery and/or warehousing with other non-postal functions),

7.
Activities relating to the exploitation of a
geographical area for the purpose of:

(a)
extracting oil or gas,

(b)
exploring for or extracting coal or other solid
fuels.

ANNEX IV
INFORMATION TO BE INCLUDED IN CONCESSION NOTICES

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or entity and, where
different, of the service from which additional information may be obtained.

2.
Type of contracting authority or entity and main
activity exercised.

3.
If the applications are to contain tenders,
email or internet address at which the specifications and any supporting
documents will be available for unrestricted and full direct access, free of
charge.

4.
Description of the procurement: nature and
extent of works, nature and quantity or value of supplies, nature and extent of
services, Where the concession is divided into lots, this information shall be
provided for each lot. Where appropriate, description of any options.

5.
CPV Nomenclature reference No(s). Where the concession is divided into lots, this information shall be
provided for each lot.

6.
NUTS code for the main location of works in case
of works concessions or NUTS code for the main place of performance service
concessions; where the concession is divided into lots, this information shall
be provided for each lot.

7.
Estimated total value of concession(s); where
the concession is divided into lots, this information shall be provided for
each lot, together with detailed method of calculation of the estimated total
value of the concession, in accordance with Art. 6

8.
Where the concession is to be subdivided into
lots, indication of the possibility of tendering for one, for several or for
all of the lots; indication of any possible limitation of the number of lots
that may be awarded to any one tenderer.

9.
Time-frame for delivery or provision of
supplies, works or services and, as far as possible, duration of the
concession.

10.
Conditions for participation, including:

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

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

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

11.
Description of award procedure used, if the
procedure is to be conducted in stages, number of candidates to be admitted to
a given stage or to be invited to submit tenders and objective criteria to be
used to choose the candidates in question.

(a)        Time
limit for the submission of applications

(b)        Address
to which they must be sent

(c)        Language(s)
in which they must be written

12.
Criteria which will be applied in the award of
the concession

13.
Date of dispatch of the notice

14.
Name and address of the body responsible for
appeal and, where appropriate, mediation procedures. Precise information
concerning the deadline for lodging appeals or, if need be, the name, address,
telephone number, fax number and email address of the service from which this
information may be obtained.

15.
Where appropriate, particular conditions to
which performance of the concession is subject.

16.
Address where applications or tenders shall be
transmitted.

17.
In case of one-stage procedures:

(a)        Time
limit for receipt of tenders, if different from the time limit  the submission of applications

(b)        time
frame during which the tenderer must maintain its tender,

(c)        date,
time and place for the opening of tenders,

(d)        persons
authorised to be present at such opening.

18.
Where appropriate, indication of requirements
and conditions related to the use of electronic means of communication

19.
Information whether the concession is related to
a project and /or programme financed by European Union funds.

ANNEX V
INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES

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

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or entity and, where
different, of the service from which additional information may be obtained.

2.
Type of contracting authority or entity and main
activity exercised.

3.
CPV Nomenclature reference No(s).

4.
NUTS code for the main location of works in case
of works concessions or NUTS code for the main place of performance in case of
service concessions;

5.
Description of the procurement: nature and
extent of works, nature and quantity or value of supplies, nature and extent of
services. Where the concession is divided into lots, this information shall be
provided for each lot. Where appropriate, description of any options.

6.
Description of award procedure used, in the case
of award without prior publication, justification.

7.
Criteria referred to in Article 39 which were
used for award of the concession or concessions.

8.
Date of concession award decision or decisions;

9.
Number of tenders received with respect of each
award, including:

(a)        number
of tenders received from economic operators which are small and medium
enterprises,

(b)        number
of tenders received from abroad,

(c)        number
of tenders received electronically.

10.
For each award, name, address including NUTS
code, telephone, fax number, email address and internet address of the
successful tenderer(s) including

(a)        information
whether the successful tenderer is small and medium enterprise,

(b)        information
whether the concession was awarded to a consortium.

11.
Value and main financial terms of the awarded
concession, including fees and prices.

12.
Where appropriate, for each award, value and
proportion of concession likely to be subcontracted to third parties.

13.
Information whether the concession is related to
a project and /or programme financed by European Union funds.

14.
Name and address of the oversight body and the
body responsible for review and, where appropriate, mediation procedures.
Precise information concerning the deadline for review procedures, or if need
be, the name, address, telephone number, fax number and email address of the
service from which this information may be obtained

15.
Date(s) and reference(s) of previous
publications in the Official Journal of the European Union relevant to the
concession(s) advertised in this notice.

16.
Date of dispatch of the notice.

17.
Detailed method of calculation of the estimated
total value of the concession, in accordance with Article 6.

18.
Any other relevant information.

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

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or entity and, where different,
of the service from which additional information may be obtained.

2.
Description of the procurement: nature and
extent of works, nature and quantity or value of supplies, nature and extent of
services, Where the concession is divided into lots, this information shall be
provided for each lot. Where appropriate, description of any options.

3.
CPV Nomenclature reference No(s).

4.
Type of contracting authority or entity and main
activity exercised.

5.
Date of concession award decision or decisions;

6.
For each award, name, address including NUTS
code, telephone, fax number, email address and internet address of the economic
operators to which the concession has been awarded.

7.
Value and main financial terms of the award,
including fees and prices.

8.
Detailed method of calculation of the estimated
total value of the concession, in accordance with Article 6.

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

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or entity and, where
different, of the service from which additional information may be obtained.

2.
Type of contracting authority or entity and main
activity exercised.

3.
CPV Nomenclature reference No(s); where the
contract is divided into lots, this information shall be provided for each lot.

4.
At least a summary indication of the nature and
quantity of the services and if applicable, works and supplies provided.

5.
Number of tenders received.

6.
Value and main financial terms of the award,
including fees and prices.

7.
Name and address including NUTS code, telephone,
fax number, email address and internet address of the successful economic
operator(s).

8.
Any other relevant information.

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

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or entity and, where
different, of the service from which additional information may be obtained.

2.
CPV Nomenclature reference No(s);

3.
NUTS code for the main location of works in case
of public works concessions or works concessions or NUTS code for the main
place of delivery or performance in service concessions;

4.
Description of the concession before and after
the modification: nature and extent of the works, nature and quantity or value
of supplies, nature and extent of services.

5.
Where applicable, modification of financial
terms of the concession, including increase in prices or fees caused by the
modification.

6.
Description of the circumstances which have
rendered necessary the modification.

7.
Date of concession award decision.

8.
Where applicable, the name, address including
NUTS code, telephone, fax number, email address and internet address of the new
economic operator or operators.

9.
Information whether the concession is related to
a project and /or programme financed by European Union funds.

10.
Name and address of the oversight body and the
body responsible for review and, where appropriate, mediation procedures.
Precise information concerning the deadline for review procedures, or if need
be, the name, address, telephone number, fax number and email address of the
service from which this information may be obtained.

11.
Date(s) and reference(s) of previous
publications in the Official Journal of the European Union relevant to the
contract(s) concerned by this notice.

12.
Date of dispatch of the notice.

13.
Any other relevant information.

ANNEX VIII
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purposes of this Directive:

1.           technical
specification", " means one of the following:

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

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

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

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

(b)     European standard: a standard adopted
by a European standards organisation and made available to the general public,

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

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

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

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

ANNEX IX
FEATURES CONCERNING PUBLICATION

1.
Publication of notices

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

Notices referred to in Articles 26 and 27 shall be published by the
Publications Office of the European Union

The Publications Office of the European Union
will give the contracting authority or entity the confirmation referred to in Article
28 (5).

2.
Publication of complementary or additional
information

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

3.
Format and procedures for sending notices
electronically

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

ANNEX X
SERVICES REFERRED TO IN ARTICLE 17

CPV Code || Description

7511000-4 and from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2) || Health and social services

75121000-0, 75122000-7, 75124000-1 || Administrative educational, healthcare and cultural services

75300000-9 || Compulsory social security services

75310000-2, 75311000-9, 75312000-6, 75313000-3, 75313100-4, 75314000-0, 75320000-5, 75330000-8, 75340000-1 || Benefit services

98000000-3 || Other community, social and personal services

98120000-0 || Services furnished by trade unions

98131000-0 || Religious services

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

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

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

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

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

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

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

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

1.
Devices for the electronic receipt of tenders
and applications must at least guarantee, through technical means and
appropriate procedures, that:

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

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

(b)
where that access prohibition is infringed, it
may be reasonably ensured that the infringement is clearly detectable;

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

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

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

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

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

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

1.
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting authority or contracting entity and,
where different, of the service from which additional information may be
obtained.

2.
Where appropriate, email or internet address at
which the specifications and any supporting documents will be available.

3.
Type of contracting authority or contracting entity
and main activity exercised.

4.
CPV Nomenclature reference No(s); where the
contract is divided into lots, this information shall be provided for each lot.

5.
NUTS code for the main place of delivery or
performance of service concessions

6.
Description of the services and where
applicable, incidental works and supplies to be procured

7.
Estimated total value of concession(s); where the
concession is divided into lots, this information shall be provided for each
lot.

8.
Conditions for participation.

9.
Where applicable, time limit(s) for contacting
the contracting authority or contracting entity in view of participation.

10.
Where applicable, brief description of the main
features of the award procedure to be applied.

11.
Any other relevant information.

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

[2]               OJ C , , p. .

[3]               OJ C , , p. .

[4]               COM(2010) 2020 final, 3.3-2010.

[5]               OJ L 204, 21.7.1998, p. 1

[6]               OJ L 27, 30.1.1997, p. 20.

[7]               OJ L 15, 21.1.1998, p. 14.

[8]               OJ L 164, 30.6.1994, p. 3.

[9]               OJ L 315, 3.12.2007, p. 1.

[10]             OJ L 18, 21.1.1997, p.1.

[11]             OJ L 18, 21.1.1997, p. 1.

[12]             OJ L 395, 30.12.1989, p. 33.

[13]             OJ L 76, 23.3.1992, p. 14.

[14]             OJ L 281, 23.11.1995, p. 31.

[15]             OJ L 55, 28.2.2011, p. 13.

[16]             OJ L 154, 21.6.2003, p. 1

[17]             Regulation of the European Parliament  and of the
Council of 24 September 2008 on common rules for
the operation of air services in the Community

[18]             OJ L 293, 31.10.2008, p. 3.

[19]             OJ L 315, 3.12.2007,

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

[21]             OJ L 217, 20.8.2009, p. 76.

[22]             OJ L 217, 20.8.2009, p. 76.

[23]             OJ L 340, 16.12.2002, p. 1.

[24]             OJ L 13, 19.1.2000, p. 12.

[25]             OJ L 274, 20.10.2009, p. 36.

[26]             OJ L 53, 26.2.2011, p. 66.

[27]             OJ L 210 of 31.7.2006, p. 19

[28]             OJ L 395, 30.12. 1989, p. 33.

[29]             OJ L 218, 13.8.2008, p. 30.

[30]             OJ L 300, 11.11.2008, p. 42.

[31]             OJ L 192, 31.7.2003, p. 54.

[32]             OJ C 316, 27.11.1995, p. 48.

[33]             OJ L 164, 22.6.2002, p. 3.

[34]             OJ L 166, 28.6.1991, p. 77.

[35]             OJ L 185, 16.8.1971, p. 15.

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

[37]             OJ L 120, 15.5.2009, p. 5.

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