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.