Definition and important features of concessions in European Union law
Abstract
Abstract: The subject of the legal analysis in this work is the definition and important features of concessions in EU law. Special attention was paid to the transfer of the operational risk, which appears as the key feature of that definition. Consideration is based on relevant EU Regulations and to a more significant extent on the practice of the EU Court of Justice, which is inevitable in this area. At the same time, the analysis points to open issues and flaws regarding normative state of play in the given area.
The work contains a conclusion that the EU Directive on Concessions on 2013, for the first time, in a more comprehensive manner, tries to define the concession and establish its important features. In that autonomous concept of the concessions, it actually raises the transfer of the operational risk to a level of the most important concession feature in EU law. Nevertheless, even beside the significant attention paid to this matter, its norm frames keep containing open issues and flaws. It is particularly visible in reference to inaccuracy and non-alignment of legal solutions. The EU Court of Justice will have the leading role in making these flaws right. However, one should not omit also certain possibilities of the respective Members States’ national laws in that regard.
References
Arrowsmith, Sue „The Law of Public and Utilities Procurement: Regulation in the EU and UK“, 2014
Bovis, Christopher H. “Public Service Partnerships as Instruments of Public Sector Management in the EU”, European Public Private Partnership Law Review 6.4, 2011
"Public procurement in the EU: Jurisprudence and conceptual directions." Common market law review 49.1 (2012).
Caranta, Roberto “The changes to the public contract directives and the story they tell about how EU law works”, Common Market Law Review 52.2, 2015
Cartei, Gian Franco "Risks and Risk Transfer in Concessions." Eur. Pub. L. 25 (2019).
Ceruti, Marco „The allocation of risk in the public-private partnership (PPP) between public contracts and concessions“, Varese, 2016
Clarke, Charles M. "An Overview of the CJEU's Current Approach towards the Application of the Underlying Treaty Principles Governing Concessions." Eur. Procurement & Pub. Private Partnership L. Rev. 10 (2015): 273.
Clifton, Јudith C. – Díaz-Fuentes, Daniel “The European Union’s Concessions Directive: A Critical Reading”
Craven, Richard “The EU's 2014 Concessions Directive”, Public Procurement Law Review, 2014
d'Haussonville, Rainer „Towards a New Concessions Regime in the EU: About the Merits and Shortcomings of the Concessions' Directive. US-China L. Rev., 11, 2014
Divljak, Drago "ИЗМЕНЕ УГОВОРА О КОНЦЕСИЈИ У ПРАВУ ЕВРОПСКЕ УНИЈЕ", Zbornik radova Pravnog fakulteta u Novom Sadu, 55.4, 2021.
Gherghina, Simona "Difficult decisions: the limits of choice by contracting authorities when awarding concession contracts." Rom. Pub.-Priv. Partnership L. Rev. 14. 2015.
„The Financing of Public Investments“, C.H. Beck Publishing House, 2015
Graells, Albert Sanchez “What Need and Logic for a New Directive on Concessions, Particularly Regarding the Issue of Their Economic Balance?”, European Pro curement & Public Private Partnership Law Review 7.2, 2012
González Hernández, Lorenzo Francisco "The Evolving Concept of Works and Service Concessions in European Union Law." Public Procurement Law Review 25, 2016.
Kotsonis, Totis "The role of risk in defining a services concession contract: wasser—und Abwasserzwekverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs—und Entsorgungsgesellschaft mbH (C-206/08)(WAZV)." Public Procure Law Rev, NA4, 2010.
Matei, Mădălina Georgiana "Differences between the Concession Contract of Public Services and other Contracts." Bulletin of the Transilvania University of Braşov, Series VII: Social Sciences and Law 1, 2013.
Neergaard, Ulla B. "Public Service Concessions and Related Concepts: The Increased Pressure from Community Law on Member States' use of Concessions." Public Procurement Law Review 6, 2007.
Prosser T. & Butler L. „Rail Franchises, Competition and Public Service“, Modern L. Rev., 2018.
Vornicu, Roxana “The rules on performance of the concession contract under the 2014 Concession Directive and the triangle of rights: a brief dialectic”, Eur. Procurement & Pub. Private Partnership L. Rev. 11, 2016
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC Text with EEA relevance OJ L 94, 28.3.2014
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 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
Interpretative Communication on Concessions Under Community Law (2.1.2), 29 Apr. 2000
European Commission, Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions, COM (2004)
Proposal for a Directive of the European Parliament and of the Council on the award of Concession Contracts – Frequently Asked Questions MEMO/11/932 Brussels, 20 December 2011
Commission Staff Working Document, Impact Assessment of an Initiative on Concessions, Brussels, 20 Dec. 2011, SEC(2011), 1588 final (4.1.1).