Regulation of concessions – a new territory for the Public Procurement Directives

The regulation of concessions within the EU and particularly in the area of public procurement law has so far been very limited and scattered. This has meant that there has been some doubt over the legal status of concessions in connection with the conclusion of public concession contracts. The current Public Procurement Directive (2004/18) contains only a few provisions on concessions – Article 1 (3) and (4) (definitions of construction and service concessions, respectively), Article 17 (exclusion of service concessions fromthe scope of the directive), and Article 56–65 (certain rules for construction concessions). The provisions for construction concessions do not entail a procurement obligation in line with those applying for public contracts. The rules, however, contain provisions on threshold values, on publication, about deadlines, subcontracting, allocation of additional works to concessionaires as well as different provisions for different types of concessionaires. Likewise, there are exceptions in the Utilities Directive (2004/17), see Article 18. These are very much been identical to those found in the Public Procurement Directive. In the Directive on Defence and Security Procurement (Directive 2009/81) there are no rules on concessions. Whilst the current directives’ have limited relevance for concessions, this is not so in relation to Court of Justice case law, the significance of which has increased over the past 15 years. During this period of time the Court has delivered a number of judgments about concession contracts and certain other public contracts which have relevance for concession contracts. Where the directives are not applied, the main source of public entities’ obligations is general EU principles and TFEU’s rules on free movement. This has been clear for several decades, but in relation to concessions, the relevance was not really emphasized until the judgment in C-324/98, Telaustria where the Court took the first step on the long winding journey concerning obligations for public contracts…