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An Overview of the CJEU’s Current Approach Towards the Application of the Underlying Treaty Principles Governing Concessions

Does the New Concessions Directive Reflect the Court’s Progressive Functional Methodology and Provide for Legal Certainty?

Charles M. Clarke


The Court of Justice of the European Union (“CJEU” or the “Court”) has consistently upheld that contracting authorities must competitively award (works and services), concession contracts that have a cross-border interest, in accordance with the general principles of the Treaty (i.e., must provide a fair, non-discriminatory and transparent award procedure). The Court has also consistently identified the difference between service concessions and general public service contracts (i.e., the transfer of the operating risk from the contracting authority to the private economic operator). Through its practical interpretation, the Court has progressively tried to fulfil the legislator’s principal goal, of the opening up Member States concessions’ markets to competition, in line with the Single Market and enhanced consumer welfare goals. The legal definition for concessions has been heavily governed by the fundamental Treaty principles and the interpretation of the case-law of the CJEU (allowing for a case-by-case approach), which has been interpreted to varying standards across Member States, causing national fragmentation to the detriment of the Single Market, economic operators and ultimately to EU citizens. While the new Concessions Directive may offer enhanced legal certainty to both economic operators and contracting authorities by adopting a majority of the principles developed by the CJEU, the new rules (including the Directive’s triggering threshold) somewhat limit the scope of the overarching objectives.

 Trainee lawyer at Gibson Dunn & Crutcher LLP, LLB (Hons), LLM (Distinction) Kings College London.

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