The Commission has already (in April 2000) adopted an Interpretative Communication on Concessions under Community Law which explains the scope and content of the EC Treaty principles applicable to the award of concessions. Many stakeholders argued that an Interpretative Communication was a quick and effective tool to provide clarification. However, comments made by key stakeholders in the course of the debate indicate that the existing Interpretative Communication on concessions has failed to spell out in a sufficiently clear manner the implications of EC Treaty principles for the award of concessions. Contributions from several important stakeholders were - surprisingly - still based on the assumption that existing EC law obligations do not require the award of concessions to be opened up to competition, in particular by enabling all undertakings to express their interest in obtaining concessions.
Other stakeholders considered an Interpretative Communication to be an ideal instrument to provide a clearer delimitation between public procurement contracts and concessions. However, the scope for certainty provided by an Interpretative Communication is limited, as it merely construes existing law. In many cases a lack of precision in the law can hardly be overcome by means of interpretation. It therefore seems likely that - while providing some added value - an update of the April 2000 Interpretative Communication on concessions would probably fall short of meeting the request for more legal certainty.