1. Without prejudice to Article 15, contracting authorities or contracting entities from different Member States may jointly award public concessions by using one of the means described in this Article.
2. Several contracting authorities or contracting entities from different Member States may jointly award a concession. In that case, the participating contracting authorities or contracting entities shall conclude an agreement that determines
(a) which national provisions shall apply to the concession concession award procedure.
(b) the internal organisation of the concession award procedure, including the management of the procedure, the sharing of responsibilities, the distribution of the works, supplies or services to be procured and the conclusion of concessions.
When determining the applicable national law in accordance with point (a), contracting authorities or contracting entities may choose the national provisions of any Member State in which at least one of the participating authorities is located.
3. Where several contracting authorities or contracting entities from different Member States have set up a joint legal entity, including European Groupings of territorial cooperation under Regulation (EC) N° 1082/2006 of the European Parliament and of the Council27, the participating contracting authorities or participating contracting entities shall, by a decision of the competent body of the joint legal entity, agree on the applicable national concession award rules of one of the following Member States:
(a) the national provisions of the Member State where the legal body has its registered office;
(b) the national provisions of the Member State where the legal body is carrying out its activities.
This agreement may either apply for an undetermined period, when fixed in the constitutive act of the joint legal body, or may be limited to a certain period of time, certain types of concessions or to one or more individual concession awards.
4. In the absence of an agreement determining the applicable concession rules, the national legislation governing the concession award shall be determined following the rules set out below:
(a) where the procedure is conducted or managed by one participating contracting authority or participating contracting entity on behalf of the others, the national provisions of the Member State of that contracting authority or entity shall apply;.
(b) where the procedure is not conducted or managed by one participating contracting authority or participating contracting entity on behalf of the others, and
(i) concerns a public works or works concession, contracting authorities or entities shall apply the national provisions of the Member State where most of the works are located;
(ii) concerns a service concession, contracting authorities or entities shall apply the national provisions of the Member State where the major part of the services is provided.;
(c) where it is not possible to determine the applicable national law pursuant to points (a) or (b), contracting authorities or entities shall apply the national provisions of the Member State of the contracting authority which bears the biggest share of the costs.
5. In the absence of an agreement determining the applicable concession award law under paragraph 3, the national legislation governing concession award procedures conducted by joint legal bodies set up by several contracting authorities or contracting entities from different Member States shall be determined following the following rules:
(a) where the procedure is conducted or managed by the competent organ of the joint legal body, the national provisions of the Member State where the legal body has its registered office shall apply.
(b) where the procedure is conducted or managed by a member of the legal body on behalf of that legal body, the rules set out in points (a) and (b) of paragraph 4 shall apply.
(c) where it is not possible to determine the applicable national law pursuant to points (a) or (b) of paragraph 4, the contracting authorities or contracting entities shall apply the national provisions of the Member State where the legal body has its registered office.
6. One or more contracting authorities or one or more contracting entities may award individual concessions under a framework agreement concluded by or jointly with a contracting authority located in another Member State, provided that the framework agreement contains specific provisions enabling the respective contracting authority or contracting authorities or to award contracting entity or contracting entities the individual concessions.
7. Decisions on the award of concessions in cross-border concession award shall be subject to the ordinary review mechanisms available under the national law applicable.
8. In order to enable the effective operation of review mechanisms, Member States shall allow the decisions of review bodies within the meaning of Council Directive 89/665/EEC28 and of Council Directive 92/13/EEC located in other Member States to be fully executed in their domestic legal order, where such decisions involve contracting authorities or contracting entities established on their territory participating in the relevant cross-border concession award procedure.
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27 OJ L 210 of 31.7.2006, p. 19
28 OJ L 395, 30.12. 1989, p. 33.