Brussels, 26/07/2011 (Agence Europe) - In early September, the European Commission will present a proposal for a directive aimed at setting out a framework for European service concessions that make up 60% of public-private partnerships in Europe. This legislative initiative will amend the public procurement directive 2004/18/EC in order to include a part devoted to service concessions alongside that already set aside for works concessions. It is an “evolution, not a revolution”, explains a collaborator of Internal Market Commissioner Michel Barnier. The distinction between works concessions and service concessions is “less and less clear”, the aim being to end the rule differences that contribute to legal uncertainty, he adds.
Concessions differ from public contracts in that the economic operator designated as the concession holder bears part of the operational or financial risks inherent to the concession and is totally, or partially, remunerated by exploiting the object of the concession. This covers the accomplishment of work such as a bridge or a toll tunnel. In the services sector, concessions may relate to water treatment or waste management.
In order to draft its legislative proposal, the Commission took the 25 rulings of the European Court of Justice as a basis. It will above all integrate into European law the notion of transferring a significant part of the risk from the adjudicating power to the concession holder. The scope of the directive will be cross-cutting and, in principle, all services will be covered, such as water treatment and the provision of energy. There will nonetheless be certain exceptions. The first concerns services covered by rules for local passenger transport services. After the fashion of the public procurement directives, a distinction will be made between priority services and those that are not a priority. Future rules will not apply to non-essential services such as crèches or school canteens, or below a threshold of around €5 million, the same as that fixed for works concessions.
Organisations of regional authorities doubt there will be any added value in a European text that would restrict their ability to negotiate with a service provider. The text will, however, not establish a distinction between services of a private nature and those of a public nature. The Commission argues: “The public authorities will be free to organise their public services as they feel fit. However, when there is externalisation of a service with a contract awarded to an economic operator, can one be against this being done in conditions of transparency?” Services concessions are already the subject of detailed rules in Spain, France and Portugal. (M.B./transl.jl)