What changed, Directive 2014/23/EU

+ ## Section I / **Subject-matter, scope, general principles, definitions and threshold**
− ### art_1
+ ### Article 1 — Subject-matter and scope
− Article 1
+ (a) Contracting authorities; or
− | (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.
− | (b) | Contracting entities, provided that the works or services are intended for the pursuit of one of the activities referred to in Annex II. |
− | --- | --- |
− 
− ### art_2
+ ### Article 2 — Principle of free administration by public authorities
− Article 2
+ ### Article 3 — Principle of equal treatment, non-discrimination and transparency
− ### art_3
− Article 3
− 
+ ### Article 4 — Freedom to define services of general economic interest
− ### art_4
− Article 4
− 
+ ### Article 5 — Definitions
+ 
+ For the purposes of this Directive the following definitions apply:
− ### art_5
+ (1) ‘concessions’ means works or services concessions, as defined in points (a) and (b):
− Article 5
+ (a) ‘works concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploi…
− For the purposes of this Directive the following definitions apply:
+ (b) ‘services concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic…
− | (1) | ‘concessions’ means works or services concessions, as defined in points (a) and (b):(a)‘works concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more e…
− | --- | --- |
− | (a) | ‘works concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to ex…
− | (b) | ‘services concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more econ…
+ The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it…
− | (2) | ‘economic operator’ means any natural or legal person, or public entity, or a group of such persons or entities, including temporary associations of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market; |
− | --- | --- |
+ (2) ‘economic operator’ means any natural or legal person, or public entity, or a group of such persons or entities, including temporary associations of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;
− | (3) | ‘candidate’ means an economic operator that has sought an invitation or has been invited to take part in a concession award procedure; |
− | --- | --- |
+ (3) ‘candidate’ means an economic operator that has sought an invitation or has been invited to take part in a concession award procedure;
− | (4) | ‘tenderer’ means an economic operator which has submitted a tender; |
− | --- | --- |
+ (4) ‘tenderer’ means an economic operator which has submitted a tender;
− | (5) | ‘concessionaire’ means an economic operator which has been awarded a concession; |
− | --- | --- |
+ (5) ‘concessionaire’ means an economic operator which has been awarded a concession;
− | (6) | ‘written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information which is transmitted and stored by electronic means; |
− | --- | --- |
+ (6) ‘written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information which is transmitted and stored by electronic means;
− | (7) | ‘execution of works’ means the execution, or both the design and execution, of works related to one of the activities referred to in Annex I or of a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority or contracting …
− | --- | --- |
+ (7) ‘execution of works’ means the execution, or both the design and execution, of works related to one of the activities referred to in Annex I or of a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority or contracting enti…
− | (8) | ‘a work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; |
− | --- | --- |
+ (8) ‘a work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function;
− | (9) | ‘electronic means’ means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; |
− | --- | --- |
+ (9) ‘electronic means’ means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
− | (10) | ‘exclusive right’ means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to a single economic operator and which …
− | --- | --- |
+ (10) ‘exclusive right’ means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to a single economic operator and which subs…
− | (11) | ‘special right’ means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to two or more economic operators and whic…
− | --- | --- |
+ (11) ‘special right’ means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to two or more economic operators and which su…
− | (12) | ‘concession document’ means any document produced or referred to by the contracting authority or contracting entity to describe or determine elements of the concession or the procedure, including the concession notice, the technical and functional requirements, proposed conditions of conces…
− | --- | --- |
+ (12) ‘concession document’ means any document produced or referred to by the contracting authority or contracting entity to describe or determine elements of the concession or the procedure, including the concession notice, the technical and functional requirements, proposed conditions of concession…
− | (13) | ‘innovation’ means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes a new marketing method, or a new organisational method in business practices, workplace organisation or external …
− | --- | --- |
+ (13) ‘innovation’ means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes a new marketing method, or a new organisational method in business practices, workplace organisation or external rela…
− ### art_6
+ ### Article 6 — Contracting authorities
− Article 6
+ (a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
− | (a) | they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; |
− | --- | --- |
+ (b) they have legal personality; and
− | (b) | they have legal personality; and |
− | --- | --- |
+ (c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those bodies or authorities; or have an administrative, managerial or supervisory board, more than half of whose members are a…
− | (c) | they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those bodies or authorities; or have an administrative, managerial or supervisory board, more than half of whose members a…
− | --- | --- |
+ ### Article 7 — Contracting entities
− ### art_7
− 
− Article 7
+ (a) State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;
− | (a) | State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law; |
− | --- | --- |
+ (b) public undertakings as defined in paragraph 4 of this Article;
− | (b) | public undertakings as defined in paragraph 4 of this Article; |
− | --- | --- |
+ (c) entities other than those referred to in points (a) and (b) of this paragraph, but which operate on the basis of special or exclusive rights, granted for the exercise of one of the activities referred to in Annex II.
− | (c) | entities other than those referred to in points (a) and (b) of this paragraph, but which operate on the basis of special or exclusive rights, granted for the exercise of one of the activities referred to in Annex II. |
− | --- | --- |
+ (a) procurement procedures with a prior call for competition in conformity with Directive 2014/24/EU of the European Parliament and of the Council (21) and Directive 2014/25/EU, Directive 2009/81/EC or this Directive;
− | (a) | procurement procedures with a prior call for competition in conformity with Directive 2014/24/EU of the European Parliament and of the Council (21) and Directive 2014/25/EU, Directive 2009/81/EC or this Directive; |
− | --- | --- |
+ (b) procedures pursuant to other legal acts of the Union listed in Annex III, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.
− | (b) | procedures pursuant to other legal acts of the Union listed in Annex III, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria. |
− | --- | --- |
+ (a) hold the majority of the undertaking’s subscribed capital;
− | (a) | hold the majority of the undertaking’s subscribed capital; |
− | --- | --- |
+ (b) control the majority of the votes attaching to shares issued by the undertaking;
− | (b) | control the majority of the votes attaching to shares issued by the undertaking; |
− | --- | --- |
+ (c) can appoint more than half of the undertaking’s administrative, management or supervisory body.
− | (c) | can appoint more than half of the undertaking’s administrative, management or supervisory body. |
− | --- | --- |
+ ### Article 8 — Threshold and methods for calculating the estimated value of concessions
− ### art_8
− 
− Article 8
+ 1. This Directive shall apply to concessions the value of which is equal to or greater than EUR 5 186 000 .
− 1. This Directive shall apply to concessions the value of which is equal to or greater than EUR 5 186 000.
+ (a) the value of any form of option and any extension of the duration of the concession;
− | (a) | the value of any form of option and any extension of the duration of the concession; |
− | --- | --- |
+ (b) revenue from the payment of fees and fines by the users of the works or services other than those collected on behalf of the contracting authority or contracting entity;
− | (b) | revenue from the payment of fees and fines by the users of the works or services other than those collected on behalf of the contracting authority or contracting entity; |
− | --- | --- |
+ (c) payments or any financial advantage in any form whatsoever made by the contracting authority or contracting entity or any other public authority to the concessionaire, including compensation for compliance with a public service obligation and public investment subsidies;
− | (c) | payments or any financial advantage in any form whatsoever made by the contracting authority or contracting entity or any other public authority to the concessionaire, including compensation for compliance with a public service obligation and public investment subsidies; |
− | --- | --- |
+ (d) the value of grants or any other financial advantages, in any form, from third parties for the performance of the concession;
− | (d) | the value of grants or any other financial advantages, in any form, from third parties for the performance of the concession; |
− | --- | --- |
+ (e) revenue from sales of any assets which are part of the concession;
− | (e) | revenue from sales of any assets which are part of the concession; |
− | --- | --- |
+ (f) the value of all the supplies and services that are made available to the concessionaire by the contracting authorities or contracting entities, provided that they are necessary for executing the works or providing the services;
− | (f) | the value of all the supplies and services that are made available to the concessionaire by the contracting authorities or contracting entities, provided that they are necessary for executing the works or providing the services; |
− | --- | --- |
+ (g) any prizes or payments to candidates or tenderers.
− | (g) | any prizes or payments to candidates or tenderers. |
− | --- | --- |
+ ### Article 9 — Revision of the threshold
− ### art_9
− Article 9
− 
+ 3. The Commission shall publish the revised threshold referred to in paragraph 1, its corresponding value in the national currencies referred to in the first subparagraph of paragraph 2, and the value determined in accordance with the second subparagraph of paragraph 2, in the *Official Journal of t…
− 3. The Commission shall publish the revised threshold referred to in paragraph 1, its corresponding value in the national currencies referred to in the first subparagraph of paragraph 2, and the value determined in accordance with the second subparagraph of paragraph 2, in the Official Journal of th…
+ ## Section II / **Exclusions**
− ### art_10
+ ### Article 10 — Exclusions applicable to concessions awarded by contracting authorities and contracting entities
− Article 10
+ (a) a legal instrument creating international law obligations, such as an international agreement concluded in conformity with the TFEU between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exp…
− | (a) | a legal instrument creating international law obligations, such as an international agreement concluded in conformity with the TFEU between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or…
− | --- | --- |
+ (b) an international organisation.
− | (b) | an international organisation. |
− | --- | --- |
+ (a) specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries;
− | (a) | specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries; |
− | --- | --- |
+ (b) specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
− | (b) | specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country; |
− | --- | --- |
+ (c) specific procedural rules of an international organisation purchasing for its purposes, or to concessions which must be awarded by a Member State in accordance with those rules.
− | (c) | specific procedural rules of an international organisation purchasing for its purposes, or to concessions which must be awarded by a Member State in accordance with those rules. |
− | --- | --- |
+ (a) concessions for which the application of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security; or where the procurement and performance of the concession are declared to be secret or must be acco…
− | (a) | concessions for which the application of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security; or where the procurement and performance of the concession are declared to be secret or must be …
− | --- | --- |
+ (b) concessions awarded in the framework of a cooperative programme referred to in point (c) of Article 13 of Directive 2009/81/EC;
− | (b) | concessions awarded in the framework of a cooperative programme referred to in point (c) of Article 13 of Directive 2009/81/EC; |
− | --- | --- |
+ (c) concessions awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services;
− | (c) | concessions awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services; |
− | --- | --- |
+ (d) concessions awarded in a third country, carried out when forces are deployed outside the territory of the Union where operational needs require those concessions to be concluded with economic operators located in the area of operations; and
− | (d) | concessions awarded in a third country, carried out when forces are deployed outside the territory of the Union where operational needs require those concessions to be concluded with economic operators located in the area of operations; and |
− | --- | --- |
+ (e) concessions otherwise exempted under this Directive.
− | (e) | concessions otherwise exempted under this Directive. |
− | --- | --- |
+ 
+ (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;
+ (b) the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or concessions for broadcasting time or programme provision, that are awarded to audi…
+ 
+ (c) arbitration and conciliation services;
+ 
+ (d) any of the following legal services:
+ 
+ (i) legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC (24) in:
+ 
+ — an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance, or
+ 
+ — judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;
+ 
+ (ii) legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer …
− | (a) | the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; |
− | --- | --- |
+ (iii) document certification and authentication services which must be provided by notaries;
− | (b) | the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or concessions for broadcasting time or programme provision, that are awarded to …
− | --- | --- |
+ (iv) legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;
− | (c) | arbitration and conciliation services; |
− | --- | --- |
+ (v) other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority;
− | (d) | any of the following legal services:(i)legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC (24) in:—an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance,…
− | --- | --- |
− | (i) | legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC (24) in:—an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance, or—judicial proceedings before the cou…
− | — | an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance, or |
− | — | judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions; |
− | (ii) | legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a law…
− | (iii) | document certification and authentication services which must be provided by notaries; |
− | (iv) | legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts; |
− | (v) | other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority; |
+ (e) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council (25), central bank services and operations conducted with the European Financial Stabi…
− | (e) | financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council (25), central bank services and operations conducted with the European Financial S…
− | --- | --- |
+ (f) loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;
− | (f) | loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments; |
− | --- | --- |
+ (g) civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transpor…
− | (g) | civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient tran…
− | --- | --- |
+ (h) political campaign services, which are covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign.
− | (h) | political campaign services, which are covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign. |
− | --- | --- |
+ The grant of such an exclusive right shall be subject to publication in the *Official Journal of the European Union*.
− The grant of such an exclusive right shall be subject to publication in the Official Journal of the European Union.
+ ### Article 11 — Specific exclusions in the field of electronic communications
− ### art_11
− 
− Article 11
+ ### Article 12 — Specific exclusions in the field of water
− ### art_12
− Article 12
− 
+ (a) provide or operate fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;
− | (a) | provide or operate fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; |
− | --- | --- |
+ (b) supply drinking water to such networks.
− | (b) | supply drinking water to such networks. |
− | --- | --- |
+ (a) hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations; or
− | (a) | hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations; or |
− | --- | --- |
+ (b) the disposal or treatment of sewage.
− | (b) | the disposal or treatment of sewage. |
− | --- | --- |
+ ### Article 13 — Concessions awarded to an affiliated undertaking
− ### art_13
− Article 13
− 
+ (a) may be, directly or indirectly, subject to a dominant influence by the contracting entity;
− | (a) | may be, directly or indirectly, subject to a dominant influence by the contracting entity; |
− | --- | --- |
+ (b) may exercise a dominant influence over the contracting entity; or
− | (b) | may exercise a dominant influence over the contracting entity; or |
− | --- | --- |
+ (c) in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.
− | (c) | in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it. |
− | --- | --- |
+ (a) by a contracting entity to an affiliated undertaking; or
− | (a) | by a contracting entity to an affiliated undertaking; or |
− | --- | --- |
+ (b) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities referred to in Annex II, to an undertaking which is affiliated with one of those contracting entities.
− | (b) | by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities referred to in Annex II, to an undertaking which is affiliated with one of those contracting entities. |
− | --- | --- |
+ (a) service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years, taking into account all services provided by that undertaking, derives from the provision of services to the contracting entity or other undertakings with w…
− | (a) | service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years, taking into account all services provided by that undertaking, derives from the provision of services to the contracting entity or other undertakings wi…
− | --- | --- |
+ (b) works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years taking into account all works provided by that undertaking, derives from the provision of works to the contracting entity or other undertakings with which it i…
− | (b) | works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years taking into account all works provided by that undertaking, derives from the provision of works to the contracting entity or other undertakings with which …
− | --- | --- |
+ ### Article 14 — Concessions awarded to a joint venture or to a contracting entity forming part of a joint venture
− ### art_14
− 
− Article 14
+ (a) a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities referred to in Annex II, to one of these contracting entities; or
− | (a) | a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities referred to in Annex II, to one of these contracting entities; or |
− | --- | --- |
+ (b) a contracting entity to such a joint venture of which it forms part.
− | (b) | a contracting entity to such a joint venture of which it forms part. |
− | --- | --- |
+ ### Article 15 — Notification of information by contracting entities
− ### art_15
− 
− Article 15
+ (a) the names of the undertakings or joint ventures concerned;
− | (a) | the names of the undertakings or joint ventures concerned; |
− | --- | --- |
+ (b) the nature and value of the concessions involved;
− | (b) | the nature and value of the concessions involved; |
− | --- | --- |
+ (c) proof, deemed necessary by the Commission, that the relationship between the undertaking or joint venture to which the concessions are awarded and the contracting entity complies with the requirements of Article 13 or Article 14.
− | (c) | proof, deemed necessary by the Commission, that the relationship between the undertaking or joint venture to which the concessions are awarded and the contracting entity complies with the requirements of Article 13 or Article 14. |
− | --- | --- |
+ ### Article 16 — Exclusion of activities which are directly exposed to competition
− ### art_16
− 
− Article 16
+ ### Article 17 — Concessions between entities within the public sector
− ### art_17
− 
− Article 17
+ (a) the contracting authority or contracting entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;
− | (a) | the contracting authority or contracting entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; |
− | --- | --- |
+ (b) more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or contracting entity or by other legal persons controlled by that contracting authority or contracting entity; and
− | (b) | more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or contracting entity or by other legal persons controlled by that contracting authority or contracting entity; and |
− | --- | --- |
+ (c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on t…
− | (c) | there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence …
− | --- | --- |
+ (a) the contracting authority or contracting entity as referred to in point (a) of Article 7(1) exercises jointly with other contracting authorities or contracting entities a control over that legal person which is similar to that which they exercise over their own departments;
− | (a) | the contracting authority or contracting entity as referred to in point (a) of Article 7(1) exercises jointly with other contracting authorities or contracting entities a control over that legal person which is similar to that which they exercise over their own departments; |
− | --- | --- |
+ (b) more than 80 % of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or contracting entities or by other legal persons controlled by the same contracting authorities or contracting entities; and
− | (b) | more than 80 % of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or contracting entities or by other legal persons controlled by the same contracting authorities or contracting entities; and |
− | --- | --- |
+ (c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on t…
− | (c) | there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence …
− | --- | --- |
+ (i) the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or contracting entities. Individual representatives may represent several or all of the participating contracting authorities or contracting entities;
− | (i) | the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or contracting entities. Individual representatives may represent several or all of the participating contracting authorities or contracting entities; |
− | --- | --- |
+ (ii) those contracting authorities or contracting entities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and
− | (ii) | those contracting authorities or contracting entities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and |
− | --- | --- |
+ (iii) the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities or contracting entities.
− | (iii) | the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities or contracting entities. |
− | --- | --- |
+ (a) the contract establishes or implements a cooperation between the participating contracting authorities or contracting entities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;
− | (a) | the contract establishes or implements a cooperation between the participating contracting authorities or contracting entities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; |
− | --- | --- |
+ (b) the implementation of that cooperation is governed solely by considerations relating to the public interest; and
− | (b) | the implementation of that cooperation is governed solely by considerations relating to the public interest; and |
− | --- | --- |
+ (c) the participating contracting authorities or contracting entities perform on the open market less than 20 % of the activities concerned by the cooperation;
− | (c) | the participating contracting authorities or contracting entities perform on the open market less than 20 % of the activities concerned by the cooperation; |
− | --- | --- |
+ ## Section III / **General provisions**
− ### art_18
+ ### Article 18 — Duration of the concession
− Article 18
− 
− ### art_19
+ ### Article 19 — Social and other specific services
− Article 19
+ ### Article 20 — Mixed contracts
− ### art_20
− Article 20
− 
+ ### Article 21 — Mixed procurement contracts involving defence or security aspects
− ### art_21
− Article 21
− 
+ (a) where part of a given contract is covered by Article 346 TFEU, or different parts are covered by Article 346 TFEU and Directive 2009/81/EC respectively, the contract may be awarded without applying this Directive, provided that the award of a single contract is justified for objective reasons;
− | (a) | where part of a given contract is covered by Article 346 TFEU, or different parts are covered by Article 346 TFEU and Directive 2009/81/EC respectively, the contract may be awarded without applying this Directive, provided that the award of a single contract is justified for objective reason…
− | --- | --- |
+ (b) where part of a given contract is covered by Directive 2009/81/EC, the contract may be awarded in accordance with this Directive or in accordance with Directive 2009/81/EC, provided that the award of a single contract is justified for objective reasons.
− | (b) | where part of a given contract is covered by Directive 2009/81/EC, the contract may be awarded in accordance with this Directive or in accordance with Directive 2009/81/EC, provided that the award of a single contract is justified for objective reasons. |
− | --- | --- |
+ ### Article 22 — Contracts covering both activities referred to in Annex II and other activities
− ### art_22
− 
− Article 22
+ (a) 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 contra…
− | (a) | 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 co…
− | --- | --- |
+ (b) the contract shall be awarded in accordance with Directive 2014/24/EU, if one of the activities for which the contract is intended is subject to this Directive and the other to Directive 2014/24/EU;
− | (b) | the contract shall be awarded in accordance with Directive 2014/24/EU, if one of the activities for which the contract is intended is subject to this Directive and the other to Directive 2014/24/EU; |
− | --- | --- |
+ (c) the contract shall be awarded in accordance with this Directive, if one of the activities for which the contract is intended is subject to this Directive and the other is not subject to either this Directive, Directive 2014/24/EU or Directive 2014/25/EU.
− | (c) | the contract shall be awarded in accordance with this Directive, if one of the activities for which the contract is intended is subject to this Directive and the other is not subject to either this Directive, Directive 2014/24/EU or Directive 2014/25/EU. |
− | --- | --- |
− 
− ### art_23
+ ### Article 23 — Concessions covering both activities referred to in Annex II and activities involving defence or security aspects
− Article 23
+ (a) covered by Article 346 TFEU; or
− | (a) | covered by Article 346 TFEU; or |
− | --- | --- |
+ (b) subject to Directive 2009/81/EC,
− | (b) | subject to Directive 2009/81/EC, |
− | --- | --- |
+ (i) award a contract without applying this Directive in the cases set out under point (a); or
− | (i) | award a contract without applying this Directive in the cases set out under point (a); or |
− | --- | --- |
+ (ii) award a contract either in accordance with this Directive or in accordance with Directive 2009/81/EC, in the cases set out under point (b). The first subparagraph of this paragraph is without prejudice to the thresholds and exclusions provided for by Directive 2009/81/EC.
− | (ii) | award a contract either in accordance with this Directive or in accordance with Directive 2009/81/EC, in the cases set out under point (b). The first subparagraph of this paragraph is without prejudice to the thresholds and exclusions provided for by Directive 2009/81/EC. |
− | --- | --- |
+ ## Section IV / **Specific situations**
− ### art_24
+ ### Article 24 — Reserved concessions
− Article 24
+ ### Article 25 — Research and development services
− ### art_25
− Article 25
− 
+ (a) the benefits accrue exclusively to the contracting authority or contracting entity for its use in the conduct of its own affairs; and
− | (a) | the benefits accrue exclusively to the contracting authority or contracting entity for its use in the conduct of its own affairs; and |
− | --- | --- |
+ (b) the service provided is wholly remunerated by the contracting authority or contracting entity.
− | (b) | the service provided is wholly remunerated by the contracting authority or contracting entity. |
− | --- | --- |
+ ## *CHAPTER II* / ***Principles***
− ### art_26
+ ### Article 26 — Economic operators
− Article 26
+ ### Article 27 — Nomenclatures
− ### art_27
− Article 27
− 
+ ### Article 28 — Confidentiality
− ### art_28
− Article 28
− 
+ ### Article 29 — Rules applicable to communication
− ### art_29
− Article 29
− 
+ (a) electronic means;
− | (a) | electronic means; |
− | --- | --- |
+ (b) post or fax;
− | (b) | post or fax; |
− | --- | --- |
+ (c) oral communication, including telephone, in respect of communications other than the essential elements of a concession award procedure, and provided that the content of the oral communication is documented to a sufficient degree on a durable medium;
− | (c) | oral communication, including telephone, in respect of communications other than the essential elements of a concession award procedure, and provided that the content of the oral communication is documented to a sufficient degree on a durable medium; |
− | --- | --- |
+ (d) hand delivery certified by an acknowledgement of receipt.
− | (d) | hand delivery certified by an acknowledgement of receipt. |
− | --- | --- |
+ ## *CHAPTER I* / ***General principles***
− ### art_30
+ ### Article 30 — General principles
− Article 30
+ ### Article 31 — Concession notices
− ### art_31
− Article 31
− 
+ (a) the aim of the concession is the creation or acquisition of a unique work of art or artistic performance;
− | (a) | the aim of the concession is the creation or acquisition of a unique work of art or artistic performance; |
− | --- | --- |
+ (b) the absence of competition for technical reasons;
− | (b) | the absence of competition for technical reasons; |
− | --- | --- |
+ (c) the existence of an exclusive right;
− | (c) | the existence of an exclusive right; |
− | --- | --- |
+ (d) the protection of intellectual property rights and exclusive rights other than those defined in point (10) of Article 5.
− | (d) | the protection of intellectual property rights and exclusive rights other than those defined in point (10) of Article 5. |
− | --- | --- |
+ (a) where the applicant concerned shall or may be excluded pursuant to Article 38(4) to (9) or does not meet the selection criteria set out by the contracting authority or the contracting entity pursuant to Article 38(1);
− | (a) | where the applicant concerned shall or may be excluded pursuant to Article 38(5) to (9) or does not meet the selection criteria set out by the contracting authority or the contracting entity pursuant to Article 38(1); |
− | --- | --- |
+ (b) where applications include tenders which are not suitable within the meaning of the second subparagraph.
− | (b) | where applications include tenders which are not suitable within the meaning of the second subparagraph. |
− | --- | --- |
+ ### Article 32 — Concession award notices
− ### art_32
− Article 32
− 
+ ### Article 33 — Form and manner of publication of notices
− ### art_33
+ 1. Concession notices, concession award notices and the notice referred to in the second subparagraph of Article 43(1) shall include the information set out in Annexes V, VI, VII, VIII and XI and in the format of standard forms, including standard forms for corrigenda.
− Article 33
− 
− 1. Concession notices, concession award notices and the notice referred to in the second subparagraph of Article 43(1) shall include the information set out in Annexes V, VII and VIII and in the format of standard forms, including standard forms for corrigenda.
− 
− ### art_34
+ ### Article 34 — Electronic availability of concession documents
− Article 34
+ ### Article 35 — Combating corruption and preventing conflicts of interest
− ### art_35
− Article 35
− 
+ ## *CHAPTER II* / ***Procedural guarantees***
− ### art_36
+ ### Article 36 — Technical and functional requirements
− Article 36
+ ### Article 37 — Procedural guarantees
− ### art_37
− Article 37
− 
+ (a) the tender complies with the minimum requirements set, where applicable, by the contracting authority or contracting entity;
− | (a) | the tender complies with the minimum requirements set, where applicable, by the contracting authority or contracting entity; |
− | --- | --- |
+ (b) the tenderer complies with the conditions for participation as referred to in Article 38(1); and
− | (b) | the tenderer complies with the conditions for participation as referred to in Article 38(1); and |
− | --- | --- |
+ (c) the tenderer is not excluded from participating in the award procedure in accordance with Article 38(4) to (7), and subject to Article 38(9).
− | (c) | the tenderer is not excluded from participating in the award procedure in accordance with Article 38(4) to (7), and subject to Article 38(9). |
− | --- | --- |
+ (a) in the concession notice, a description of the concession and of the conditions of participation;
− | (a) | in the concession notice, a description of the concession and of the conditions of participation; |
− | --- | --- |
+ (b) in the concession notice, in the invitation to submit a tender or in other concession documents, a description of the award criteria and, where applicable, the minimum requirements to be met.
− | (b) | in the concession notice, in the invitation to submit a tender or in other concession documents, a description of the award criteria and, where applicable, the minimum requirements to be met. |
− | --- | --- |
+ ### Article 38 — Selection and qualitative assessment of candidates
− ### art_38
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