Procurement in the European Union: Service concession

How does the Procurement Directive 2004/18/EC define a service concession?

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Service concession

Article 1.4 of the Procurement Directive 2004/18/EC defines a service concession in the following way:

4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.


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Public service contract

First we have to return to the definition of a public service contract in Article 1.2(d) to find the similarities:


(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.

A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.

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Annex II services

Annex II Services referred to in Article 1(2)(d), from page 67 in the consolidated Directive, lists the following services (with further precisions in the Annex):

1. Maintenance and repair services
2. Land transport services, including armoured car services, and courier services, except transport of mail
3. Air transport services of passengers and freight, except transport of mail
4. Transport of mail by land and by air
5. Telecommunications services
6. Financial services: (a) Insurance services; (b) Banking and investment services
7. Computer and related services
8. Research and development services
9. Accounting, auditing and bookkeeping services
10. Market research and public opinion polling services
11. Management consulting services and related services
12. Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services
13. Advertising services
14. Building-cleaning services and property management services
15. Publishing and printing services on a fee or contract basis
16. Sewage and refuse disposal services; sanitation and similar services

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Public service concession

What makes a public service contract into a service concession is that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.

The Commissions Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) explains the background and offers a broad description on page 5:

The Commission's original proposal contained provisions on public service concessions analogous to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions. Thus the Services Directive does not apply to public service concessions, which broadly means that the Directive does not apply to contracts whereby a public authority transfers the execution of a service to the public lying within its responsibility to an undertaking of its choice and the latter agrees to execute the activity in return for the right to exploit the service, or this right together with payment. Nevertheless, the award of such contracts is, of course, subject to the Treaty rules concerning the freedom to provide services and to the general principles of Community law such as non-discrimination, equality of treatment, transparency and mutual recognition.


Ralf Grahn

European Union: Public procurement definitions

Public contracts, public works contracts, public supply contracts and public service contracts are defined in Article 1(2) of the Procurement Directive 2004/18/EC.

Title I Definitions and general principles starts with Article 1 Definitions, and the definitions are set out in paragraphs 2 to 15.

First we present the definitions as given in the Procurement Directive. Then we refer to some materials aimed at business persons and public servants.

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TITLE I
DEFINITIONS AND GENERAL PRINCIPLES

Article 1
Definitions

1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.

2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.

(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.

(c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.

A public contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘public supply contract’.

(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.

A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.

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Procurement Directive

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 (published OJ 30.4.2004 L 134/114).

The consolidated version of 1 January 2008 of the Procurement Directive 2004/18/EC is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF

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Procurement law overview

The European Commission’s Scadplus web page Public works contracts, public supply contracts and public service contracts offers a business person or a public servant an overview of EC (EU) legislation (last update 14 January 2008):

http://europa.eu/scadplus/leg/en/lvb/l22009.htm

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Guidelines

More detailed Guidelines have been published by the Commission on public supply contracts, public procurement of services and public works contracts. They are based on the repealed Directives, but much of the information is still valid today:

http://ec.europa.eu/internal_market/publicprocurement/guidelines_en.htm

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Harmonisation

The European Community (European Union) has used Directives to harmonise certain aspects of public procurement. Directives are binding as to the results to be achieved, but the member states are free to choose the means. Usually Directives are transposed by national legislation, and despite the common background and jurisprudence differences exist between the member states.

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English – Swedish glossary

The Swedish Competition Authority (Konkurrensverket) has published an English – Swedish glossary of procurement terms (Engelsk- svensk ordlista avseende upphandlingstermer), available at:

http://www.konkurrensverket.se/upload/Filer/Upphandling/%C3%96vers%C3%A4ttning/eng-sv_ordlista.pdf


Ralf Grahn