A large number of contributors say that guidance on concessions should primarily focus on the definition of concessions, clearly delineating these arrangements from public contracts. This initiative should, in particular, clarify which and to what extent risks have to be assigned to the private partner, to justify treating the respective arrangement as a concession. Clarification is also requested on how to apply the basic EC Treaty principles, in particular transparency, when awarding concessions.
Other contributors argue that the new Public Procurement Directives7 have just been adopted, but not yet implemented by the Member States. Until those Directives are fully implemented, they consider any Community initiative going beyond a guidance document to be premature. They argue that before tackling such a binding Community initiative, the Commission should update its Interpretative Communication on Concessions under Community Law8 of April 2000, on the basis of experience gained in this area. Another contributor favours a guidance document and questions whether detailed EC legislation is appropriate to change anticompetitive behaviour by public authorities.
One contributor submits that an initiative on concessions should consist in exchanging best practice, rather than drafting rigid legislation.
A considerable number of stakeholders advocate a non-legislative initiative at Community level to provide more clarity on public procurement issues in relation to PPPs in general. One suggestion is to present the different types of PPPs and explain which public procurement procedure is best suited to each of these types. Other demands for clarification cover the definition of PPPs, including the distinction between works concessions and works contracts, and the formulation of general principles applicable to tendering for PPPs. As regards the difficulty of deciding at the outset whether the contract is a public contract or a concession9, one contributor suggests that, where there is any doubt, the transaction should be treated as a service contract if there is a reasonable chance that it will be so defined later on. Another contributor recommends sticking to the initial qualification even if - in the course of the procedure - it turns out to be inappropriate.
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7 Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 134, 30.4.2004, p.1) and Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 30.4.2004, p.114).
8 OJ C 121, 29.4.2000, p.2.