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