The more one analyses the content of Directive 2014/23 on concessions (the Concessions Directive), the more one realises that it is full of unnecessary complexities and that it is (unfortunately) a horrible example of the 'Frankenstein effect' that the EU legislative procedure sometimes generates.
I am in particular puzzled by Arts 1(2), 6 and 7 of the Concessions Directive, which aim to determine its (personal) scope of application. The difficult exercise attempted in the Concessions Directive is to combine or merge the scope of application of both the Public Sector Directive (2014/24) and the Utilities Directive (2014/25) and, at first sight, looking at Article 1(2), it seems like it achieves that goal (as Richard Craven concludes in his piece on the Concessions Directive about to be published in the Public Procurement Law Review).
A cursory look at that provision indeed confirms that both 'contracting authorities' subjected to the Public Sector Directive and the 'contracting entities' covered by the Utilities Directive are within the scope of the Concessions Directive, as its Article 1(2) determines that: "This Directive applies to the award of works or services concessions, to economic operators by: (a) Contracting authorities; or (b) Contracting entities, provided that the works or services are intended for the pursuit of one of the activities referred to in Annex II".
However, that is not the end of the story, as Articles 6 and 7 define contracting authorities and contracting entities respectively and create an unnecessary split of the category of contracting authorities that I find unnecessary. The following is a draft comment on Article 6 of the Concessions Directive on which I am working and, as it will probably be evident, this keeps me quite confused...
On Article 6
6. Contracting
authorities
01. With the exception of the excluded contracting
authorities mentioned at the end of paragraph 1, this provision is identical to the Public Sector Directive Article
2(1) subparagraphs 1 and 4 and Article 2(2). For a commentary, see those
provisions.
6.1. Excluded
contracting authorities, which become contracting entities
01. One of the elements of the definition of the personal
scope of application of the Concessions Directive with which it is difficult to
come to terms is the treatment of certain contracting authorities (as per their
classic definition in the Public Sector Directive) as contracting entities.
More specifically, the exclusion is triggered when entities that would
otherwise be contracting authorities engage in activities listed in Annex II (ie utilities activities except those
related to water, see Article 12 and commentary to Article 1) and award a
concession for the pursuit of one of those activities. The exclusion refers to
the treatment of those ‘contracting authorities’ (by nature) as ‘contracting entities’ (by reason of their activity)
under Article 7, which comes to mean that the carrying out of one of the
activities in Annex II by means of a concession will only be subjected to the
regime applicable to contracting entities, whereas the carrying out of any
other concession-related activity (unless excluded from the Directive or
subjected to a special regime) will be subjected to the rules applicable to
contracting authorities. In case the contracting authority/contracting entity
carries out both types of activities and awards a concession that covers both
types of activities, the rules to determine the applicable legal regime will be
those in Article 22 and, generally, will imply that the concession is subject
to the rules applicable to the activity for which it is principally intended
[Article 22(2)]. However, if it is objectively impossible to determine for
which activity the contract is principally intended, the obscure provision in
Article 22(3)(a) of the Concessions Directive will be applicable, which
indicates that “the concession shall be
awarded in accordance with the provisions of this Directive applicable to
concessions awarded by contracting authorities, if one of the activities for
which the contract is intended is subject to the provisions of this Directive
applicable to concessions awarded by contracting authorities and the other is
subject to the provisions of this Directive applicable to concessions awarded
by contracting entities”. Hence, in case of significant difficulty
(rectius, objective impossibility) in determining the applicable legal regime,
the one corresponding to contracting authorities will be preferred.
02. However, the exclusion in Article 6 and inclusion in Article 7 are superfluous in connection with most of the specific obligations and duties regulated in the Concessions Directive, which establishes a regime that is fundamentally homogeneous to concessions awarded by contracting authorities and those awarded by contracting entities. At least in the case of contracting authorities ‘by nature’, the justification for the creation of the dual legal regime on the basis of the activity they pursue is difficult to understand and is likely to have a very limited effect in practice that can hardly justify the complexity it brings about (think exclusively of the convoluted drafting that the Concessions Directive has adopted in order to accommodate such minimal nuances). Indeed, comparing both regimes, it is only possible to identify a very limited number of discrepancies in legal regime (which are almost exclusively concerned with the potential exclusions of coverage from the directive) and primarily include the following rules:
·
Recital
66: only mentions contracting authorities when it indicates the possibility of
including social requirements that directly characterise the product or service
affected by a concession in the technical specifications. However, the omission
of contracting entities seems to be an error, as there is no reason to prevent
contracting entities from doing so, as long as they comply with the
requirements imposed in the case law of the ECJ.
·
Article
10(1): covering an exclusion for concessions awarded to a contracting authority
on the basis of an exclusive right, although the exclusion is extended to a
contracting entity as referred to in point (a) of Article 7(1), which
effectively nullifies the different in treatment for these purposes.
·
Article
11: covering a specific exclusion in the field of electronic communications
whereby the Concessions Directive shall not apply to concessions for the
principal purpose of permitting the contracting authorities to provide or
exploit public communications networks, or to provide to the public one or more
electronic communications services. However, the restriction of this exclusion
to contracting authorities may have very limited effects in view of the
alternative exclusion available for contracting entities when their activities
are subject to competition (Article 16 below), given that most electronic
communications exploited commercially are actually exposed to competition as a
requirement of sectorial regulation.
·
Articles
13 and 14, and Article 17, which set out different rules for (quasi) in-house
exclusions depending on whether they relate to contracting authorities or
contracting entities. However, the functional requirements are rather similar,
so there is no significant difference in the rules allowing for the award of
concessions without compliance with competitive tendering requirements
(effective control, 80% of turnover generated in the in-house sphere, etc; see
commentary below).
·
Article
15, which creates an additional duty of information on contracting entities in
favour of the Commission in case certain exclusions under Articles 13 and 14
apply.
·
Article
16: which restricts the exclusion available for activities directly exposed to
competition to contracting entities—and that, in any case, would be very
difficult to apply to contracting authorities because they do not tend to
participate directly in the provision of services subjected to effective
competition.
·
Article
23: on concessions including activities subjected to diverse legal regimes and
that set out a preference for the regime applicable to contracting authorities
over the one applicable to contracting entities as a residual rule.
·
Article
38(4) in fine: which sets higher
evidentiary standards for contracting entities that are not (improper)
contracting authorities wishing to exclude from participation any economic
operators affected by the grounds of mandatory exclusion foreseen in Article
38(4) of the Concessions Directive (see that provision for commentary). This
also applies to other aspects of Article 38, where the degree of compliance
with rules on mandatory or discretionary compliance can be modulated
differently by Member States depending on whether the concession is awarded by
a contracting authority (or an improper contracting entity) or by a (proper)
contracting entity. However, given the discretion left to Member States in this
area, it is hard to foresee whether this will generate any meaningful
differences in practice.
03. Moreover, the inclusion of contracting authorities as
contracting entities by virtue of the activities in which they engage creates
significant difficulty in the treatment of contracting entities in the Concessions
Directive, as some provisions are addressed to all contracting entities and
others are only addressed to ‘proper’ contracting entities (ie those that are not contracting
authorities ‘by nature’) which forces the drafting to resort to convoluted
expressions such as “contracting
authorities and contracting entities as referred to in point (a) of Article
7(1)” or “contracting entities other
than those referred to in point (a) of Article 7(1)”. Indeed, in most cases
where there is any meaningful difference, contracting
entities as referred to in point (a) of Article 7(1) receive the same legal
treatment as contracting authorities under Article 6 (which seems like the
logical thing to do). All in all, then, given the (very) minor differences in
legal regime (which are almost non-existent other than in terms of coverage of
the directive), a much more simplified regime for contracting authorities would
definitely have been preferable.
* * * * *
 More than ever, I wish that the 'Sanity clause' scene of the Marx Bros' A Night at the Opera was just a figment of a crazy imagination... |