Most of the stakeholders who argue in favour of a legislative initiative cite the need for legal certainty at EC level for the award of concessions. Uncertain rules are said to impede the protection of private investment and increase consulting and legal advice costs for undertakings. Other stakeholders contend that the provision of a common set of EC rules on this subject would create a level playing field for all competitors, thereby safeguarding the Internal Market, and eventually enhance (transnational) competition and cross-border tendering. A group of contributors say that the general EC Treaty principles do not provide enough legal certainty: they leave too much discretion to contracting authorities and cannot therefore guarantee equal treatment of European companies throughout the EU.
Another key argument in favour of EC legislation is the need to increase transparency. According to one contributor, most problems with PPPs concern the choice of the private partner and consequently one risk to such projects would be reduced if specific PPP public procurement rules at EC level were introduced. In addition, the fact that major concessions in water supply or toll roads are not subject to strict procurement rules is seen as a serious anomaly of EC public procurement law.
As to the content of a legislative EC initiative on concessions, some contributors say that it should at least clearly define the various types of concessions and provide a legal framework for the award procedure for concessions. Some contributions submit that a legislative initiative on concessions should be part of a general legislative initiative on PPPs, which should cover the obligation to open a competitive procedure for the award of a contract, including its proper publication, the definition of "in-house" and the guarantee of equal access to subsidies. The analysis of the large number of contributions from stakeholders who are in favour of a legislative Community initiative on PPPs in principle shows, however, that few are actually in favour of aligning the procedures for contracts and concessions.
On the form of possible legislation, one stakeholder says that a legislative PPP initiative should merely consist in amending Directive 2004/18/EC, rather than "inventing" an entirely new initiative. According to various stakeholders, any EC initiative on the award of concessions should leave sufficient flexibility for projects to evolve into different structures and allow for fundamental differences between projects in different industry sectors. Other stakeholders stress that national experience needs to be analysed carefully before any legislation is drafted in this area.