Many contributors opposing any EC initiative on concessions argue that concessions are a special case. They say that such arrangements assign considerable risks to the private party in terms of services of general economic interest. Public authorities awarding concessions therefore need to have full confidence in their private partner. Against this background, they find it difficult to choose the right partner on the basis of a formal procurement procedure and more particularly on the basis of economic criteria.
In this context, some contributors say that when adopting the new Public Procurement Directives the EC legislator explicitly excluded concessions (partly as regards works concessions; entirely as regards service concessions) from the scope of these Directives. There is - according to these contributors - no new evidence to challenge that decision. In addition, many contributors invoke the subsidiarity principle as an argument against a legislative initiative on concessions; several others say the application of the EC Treaty principles is sufficient to ensure competition in this area.
Some of the contributors opposing a new Community initiative on concessions express concern that overregulation, in particular introducing rigid procedures, leads to high procedural costs and a loss of the flexibility needed to negotiate concessions, that it impedes the innovative development of PPPs and generally discourages private operators from entering into PPPs. In addition, many of those contributors who are opposed to aligning award arrangements for public contracts and concessions consider it impossible to define a single procurement concept to suit all PPPs. It is stressed several times that concessions and public contracts are quite different concepts.
Two contributions from the public side say that the award of concessions on the basis of competitive procedures would lead to a "win or die" situation for small public companies which have been specifically established to perform services of general economic interest. If such undertakings lose a competition they may not be able to participate in competitions outside their geographical area of competence - due to national legal restrictions, but also due to their specific competence - whereas large international enterprises could - according to this opinion - more easily withstand failure to obtain one or more small or medium-sized local service concessions. Consequently, according to these stakeholders, submitting the award of public services to competitive tendering procedures leads in the long run to the disappearance of small and medium public enterprises and thus contributes to a non-reversible "oligopolisation" of the market.