Devil in the detail

Those considering concession negotiations post the implementation of this Directive would be well advised to familiarise themselves with the key points of the Directive before its anticipated enforcement in 2014.

In summary, the content of the proposed Directive includes:

• Precise definitions of public works concession, a works concession and services concession.

• Coverage of an award of works and services concession both in the “classic” sector (all other sectors not covered by utilities) and in the utilities sector.

• The provision for compulsory publication of services and works concessions contracts in the Official Journal of the European Union when their value is equal to or greater than €5m.

• The obligation to publish a concession award notice for services concessions of a value of between €2.5m and €5m.

• A new mechanism for dealing with modification of concessions contracts during their term because of unforeseen circumstances. This mechanism is based on case law developments in the area of contractual modification.

• The establishment of a minimum deadline of 52 days from the date the concession notice was sent to the OJEU for the submission of interest in any concession award procedure.

• The establishment of certain obligations on the selection and award criteria to be applied by the contracting authorities and contracting entities when awarding concessions. The new rules ensure that the criteria are published in advance, are objective and non-discriminatory. The proposed Directive does not outline a specific tender procedure, deferring the setting of the specific guidelines to Member States. However, any procedure adopted must be fair and transparent.

• A definition of certain guarantees aimed at ensuring transparency and equal treatment with particular reference to negotiation.

• The extension of the Remedies Directive to all concessions above the threshold, to guarantee effective avenues for challenging an award decision in court and providing minimal judicial safeguards that must be followed by contracting authorities.