• 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.