28. There are few provisions of secondary legislation which coordinate the procedures for the award of contracts designated as concession contracts in Community law. In the case of works concessions, there are only certain advertising obligations, intended to ensure prior competition by interested operators, and an obligation regarding the minimum time-limit for the receipt of applications.32 The contracting bodies are then free to decide how to select the private partner, although in so doing they must nonetheless guarantee full compliance with the principles and rules resulting from the Treaty.
29. For their part, the rules governing the award of services concessions apply only by reference to the principles resulting from Articles 43 and 49 of the Treaty, in particular the principles of transparency, equality of treatment, proportionality and mutual recognition.33 In its Telaustria Judgment, the Court stated in this respect that "[the] obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed".34
30. The Commission considers that the rules resulting from the relevant provisions of the Treaty can be summed up in the following obligations: fixing of the rules applicable to the selection of the private partner, adequate advertising of the intention to award a concession and of the rules governing the selection in order to be able to monitor impartiality throughout the procedure, introduction of genuine competition between operators with a potential interest and/or who can guarantee completion of the tasks in question, compliance with the principle of equality of treatment of all participants throughout the procedure, selection on the basis of objective, non-discriminatory criteria.
31. Thus the Community law applicable to the award of concessions is derived primarily from general obligations which involve no coordination of the legislation of Member States. In addition, and although the Member States are free to do so, very few have opted to adopt national laws to lay down general and detailed rules governing the award of works or services concessions.35 Thus, the rules applicable to the selection of a concessionaire by a contracting body are, for the most part, drawn up on a case-by-case basis.
32. This situation may present problems for Community operators. The lack of coordination of national legislation could in fact be an obstacle to the genuine opening up of such projects in the Community, particularly when they are organised at transnational level. The legal uncertainty linked to the absence of clear and coordinated rules might in addition lead to an increase in the costs of organising such projects.
33. Moreover, some persons have claimed that the objectives of the internal market might not be achieved in certain situations, owing to a lack of effective competition on the market. In this context the Commission wishes to recall that the "public contracts" Directives aim not only to ensure transparency of procedures and equality of treatment for economic operators, but also require that a minimum number of candidates be invited to participate in the procedures, whether these be open, restricted, negotiated, or competitive dialogue procedures.36 There is a need to assess whether the effective application of these provisions is sufficient, or whether other measures are needed to facilitate the emergence of a more competitive environment.
34. The Commission has also observed, in the context of infringement procedures already investigated, that it is not always easy to determine from the outset if the contract which is the subject-matter of the procedure is a public contract or a concession. Indeed, in the case of contracts designated as concessions when the procedure is launched, the distribution of risks and benefits may be the subject of negotiations throughout the procedure. It may occur that, following these negotiations, the contract in question must in the end by redefined as a "public contract", resulting often in a calling into question of the legality of the award procedure selected by the contracting body. According to the views expressed by the parties concerned, this situation creates a degree of legal uncertainty which is very damaging to the development of such projects.
35. In this context, the Commission could envisage proposing legislative action designed to coordinate the procedures for the award of concessions in the European Union, such new legislation being added to the existing texts on the award of public contracts. In that case it would be necessary to lay down the detailed provisions applicable to the award of concessions.
36. Also, there are grounds to examine if there are objective reasons for making the award of concessions and the award of other contractual PPPs subject to different sets of provisions. In this context, it should be noted that it is the criterion of the right of exploitation and its corollary, the transfer of the risks inherent in the exploitation, which distinguish public contracts from concessions. If it is confirmed that legal uncertainty, linked to the difficulty of identifying a priori the distribution of the risks of exploitation between the partners, arises frequently when awarding certain purely contractual PPPs, the Commission might consider making the award of all contractual PPPs, whether designated as public contracts or concessions, subject to identical award rules.
| 4. Have you already organised, participated in, or wished to organise or participate in, a procedure for the award of a concession within the Union? What was your experience of this? 5. Do you consider that the current Community legal framework is sufficiently detailed to allow the concrete and effective participation of non-national companies or groups in the procedures for the award of concessions? In your opinion is genuine competition normally guaranteed in this framework? 6. In your view, is a Community legislative initiative, designed to regulate the procedure for the award of concessions, desirable? 7. More generally, if you consider that the Commission needs to propose new legislative action, in your opinion are there objective grounds for such an act to cover all contractual PPPs, irrespective of whether these are designated as contracts or concessions, to make them subject to identical award arrangements? |
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32. See Article 3(1) of Directive 93/37/EEC, and Articles 56 to 59 of Directive 2004/18/EC.
33. Although the Commision had proposed that servces concessions be included in Directive 92/50/EEC, in the course of the legislative process the Council decided to exclude them from the scope of the Directive.
34. Case C-324/98. See also ruling of 30 May 2002, Case C-358/00, Deutsche Bibliothek, ECR. I-4685. These principles are also applicable to other State axts entrusting an econimic service to a third party, as for example the contracts excluded from the scope of the Directives owing to the they have a value below the threshold values laid down in the secondary legislation (Order of the Court of 3 December 2001, Case C-59/00, Vetergaard, ECR. I-9505), or so-called non-priority services.
35. Spain (law of 23 May 2003 on works concessions), Italy (Merloni law of 1994, as amended) and France (Sapin law of 1993) have nonetheless adopted such legislation.
36. Article 19 of Directive 93/36/EEC, Article 22 of Directive 93/37/EEC, Article 27 of Directive 92/50/EEC and Article 31 of Directive 93/38/EEC. See also Article 44 of Directive 2004/18/EC and Article 54 of Directive 2004/17/EC.