© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Concessions laws from EU procurement directives perspective -- SIGMA experience Daniel Ivarsson / Olivier Moreau SIGMA -OECD

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU THE PRINCIPLES OF THE EC TREATY (e.g. transparency, non-discrimination, equal treatment) The EC thresholds National legislation Secondary EC legislation - Utilities Directive 2004/17/EC - Classical Directive 2004/18/EC - Review Directive I. 89/665/EC (amended by 2007/66/EC) - Review Directive II. 92/13/EC (amended by 2007/66/EC) - CPV Regulation (under amendment) transposition Under the EC thresholds Out of the scope of the Directives direct application

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Secondary EC legislation on public procurement - coordinates national legislations above the EU thresholds - regulates those parts and rules of the procedure which are essential for the application of the principles So it does not regulate issues such as: Terms and conclusion of the procurement contract Detailed rules on the institutional background Detailed rules on the conduct of review procedures Detailed rules on the award of concessions Detailed rules on the conduct of the award procedure The planning and preparation of procurement Bid security

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Concessions in the EC procurement directives Concessions in the EU legislation are a specific area of public procurement: a contract for pecuniary interest between a CA and EO, where the consideration consists in the right to exploit or the right to exploit + payment Concessions sometimes are defined as: certain activities/rights of the state or the local government which are ceded to a private entity for a payment of a concession fee

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Concessions in the EC procurement directives Classical Directive 2004/18/EC - Definition of service concessions and works concessions - Service concessions are excluded from the scope - Title III.: rules on works concessions Utilities Directive 2004/17/EC - Definition of service concessions and works concessions - Both service and works concessions are excluded from the scope

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Concessions in the EC outside the scope of the procurement directives The case law of the European Court of Justice TELAUSTRIA judgment (C-324/98): The fundamental rules of the Treaty, in particular the principle of non discrimination apply to service concessions. Advertising must be sufficient to open the services market up to competition.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Interpretation of concessions in the EC procurement directives Commission Interpretative Communication on Concessions under Community Law (2000/C 121/02) Main criterion: right to exploit = - to demand payment from the users of the structure - transfer of responsabilities (technical/financial/managerial) - payment to the concessionaire is allowed if it does not eliminate the risk element of the exploitation

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Concessions in the EC procurement directives Service concessions in the classical sector The principles of the EC Treaty (and Art. 3 of 2004/18/EC + review directive 89/665/EC in this regard) apply Works concessions in the classical sector Title III. of 2004/18/EC and review directive 89/665/EC apply Works and service concessions in the utilities sector Only the principles of the EC Treaty apply

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Rules on works concessions in Directive 2004/18/EC - Definition - Scope and exclusions - Advertising and time limits - Subcontracting and additional works - Rules on the award of contracts by concessionaires

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Rules on works concessions in Directive 2004/18/EC Rules on the award of contracts by concessionaires - Concessionaires which are contracting authorities: - provisions for public work contracts - Concessionaires which are NOT contracting authorities: - advertising - time limits

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public Private Partnership Not a legal term in the EU sense Describes only a specific situation when public authorities and private entities cooperate in order to meet a general interest In legal terms it can be a public contract or a concession, depending on the case Its specific form is the Institutionalised PPP

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU PPP: public contract or concession? - the right of exploitation - the transfer of the responsabilities of the operation - the transfer of risks inherent in the exploitation - the sharing of costs

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU PPP: public contract or concession? PPPs qualifying as public works contracts or as priority service contracts: application of the detailed provisions of the Procurement Directives PPPs qualifying as public works concessions or non- priority service contracts: application of some provisions of the Directives PPPs qualifying as service concessions: EC Treaty principles only

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