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Procedures For Concessions Of Services And Jobs.

Original Language Title: Procedure di affidamento delle concessioni di servizi e di lavori.

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1) The use of increasingly more 'spread the instrument of concessions by administrations to carry out and finance major infrastructure works and to provide certain services, in one with the slope of infringement proceedings brought by the European Commission on the subject, it should be providing interpretation clarifying Community law applicable in that field in the light of the interpretative communication of the Commission on concessions of 12 April (OJ 121/5 of 29 April 2000) and the most 'recent case law (ECJ, judgment of 7 December 2000 in Case C-324/98 Telaustria c. Post & Telekom Austria). In this communication the Commission makes clear that even if concessions are not covered by specific directives are still subject to the principles and rules of the Treaty. This circular shall mean then specify both the principles of the EC Treaty apply to all forms of concessions and rules that relate in particular to public works concessions provided for by Directive 93/37 / EEC (the "Works Directive" ) on public works contracts. 2) The Treaty does not contain a definition of the concession. The only definition to be found in secondary Community law 'as in Directive 93/37 / EEC which defines it as "a contract of the same characteristics of public works contracts, except for the fact that the consideration for the works consists either solely in right to exploit the work or in this right together with payment "(art. 1, letter d). A similar definition, borrowed from that of the Community, and 'in national legislation that identifies public works concessions as contracts concluded in writing between a contractor and a contracting authority where the consideration in favor of the concessionaire consists either solely in the right to exploit functionally and economically exploit all the work carried out (art. 19, paragraph 2 of law 11 February 1994, n. 109, as replaced by art. 3, paragraph 6, of the law 18 November 1998, n. 415). 3) In order to delimit the scope of this circular must first outline the criteria of differentiation of works concessions with respect to public works contracts into one with the distinction in between service concessions and service contracts. According to the aforementioned interpretative communication from the Commission the hallmark of public works concessions with respect to works contracts it is the conferral of a right to work management that allows the concessionaire to demand payment by the user proceeds by way of the construction of quid pro quo ' It operates (for example, in the form of charging tolls or fees) for a certain period of time. The right of exploitation also implies the transfer of responsibility 'management that invests the technical, financial and managerial work. From the foregoing it follows that in a works concession randomness on the management is transferred to the lessee assumes the "economic risk", in the sense that his remuneration dependent on the income that can 'be drawn from fruition. On the contrary, and 'in the presence of a public works contract if the cost of essentially borne by the' awarding authority and the contractor does not receive remuneration through the proceeds received by users. It should also be noted that the distinction between concession and public works contracts is not relevant for purposes of judicial protection because 'art. 31-bis, paragraph 4, of Law no. 109 of 1994 equates the two figures below this protection profile. It should finally be pointed out that the mentioned Article. 19, paragraph 2, of the Merloni law also provides for the possibility 'of a mixed character case in which the transfer of the right of management and' accompanied by the recognition of a financial quid pro quo in favor of the manufacturer to an extent in any case not more than 50% of 'total cost of the work. 4) A similar criterion applies to distinguish and concessions of public services other than service contracts in that, subject to the differences of which you will say 'well between work concession and service, even to the service licensee is not granted a price but only the right to obtain the remuneration of the attivita 'carried out through the possibility' to manage the service for a specified period. The Court of Justice has therefore recently ruled that service concessions fall within the application of the Directive on public procurement, and in particular Directive n. 93/38 EC where the consideration given by the administration to private enterprise consists in obtaining from the latter of the right to exploit for the purpose of payment its own performance (ECJ, judgment of 7 December 2000 Case C-324/98, cit., point n. 58). On the Interpretative Communication it has made clear that applying this criterion is a concession when the operator bears the risk of operating the service (its establishment and management) from the user, particularly by means of the collection of any fee. The mode 'operator is remunerated and', as is the case for works concessions, a factor which helps to determine the acceptance of risk management. As a works concession, the granting of services and 'characterized by a transfer of responsibility' of management. Lastly, service concessions normally concern activities 'which, by their nature, subject, and the rules governing them, may fall within the sphere of responsibility' of the state and be subject to exclusive or special rights (Section 2.2 of Communication ). It can 'add, for the purposes of domestic law, which while in government procurement of services the contractor provides moving services in favor of the government, which uses that benefit for the purposes of public service delivery for the benefit of the community', in the public service concession the concessionaire replaces the public administration in providing the service, or in the performance of the attivita 'direct to the collective interest satisfaction. In order to draw the distinction between the service contract and the provision of public services, the traditional doctrine has identified a multiplicity 'of usable criteria, such as: a) the surrogate character of the attivita' of public service performed by the dealer as opposed to 'activities' of mere economic significance held by the contractor in the interest of the public contracting; b) the unilateral nature of the grant of rights of custody of the public service, as opposed to the character of the contract negotiation; c) the transfer of parental authority 'public entrusted to the concessionaire, as opposed to their prerogatives of any economic entity recognized contractor that does not operate as an indirect administrative body; d) the effect accretive typical of the concession. The question 'was submitted to the Council of State in judgment n. 5771/2001 defined with the device December 12, 2001, n. 670. In the opinion of this Department, the criterion for distinguishing more 'convincing' that relative to the object of the two opposing schools, which is also reflected on the physiognomy of the considered relations. It observes that the service contract concerns services rendered in favor of the administration, while the service concession always concerns an articulated trilateral relationship, which affects the administration, the dealer and the service users. This 'involves, as a rule, further consequences on the identification of the persons required to pay the attivita' breakthrough consideration. Normally, in the public service concession service fee it is levied on the users, and in the procurement of services it is for the burden of compensating the activities' carried out by the private sector. This additional criterion, however, assumes an appreciable relief only when the public service, for its objective characteristics, and 'divided among users who, in practice, not directly benefit from. 5) In continuity 'line with Community case-law has the recent address followed by the internal administrative law. By Decision No. 253 of 17 January 2002 the Fourth Section of the State Council, speaking in the custody order granting motorway network management, noted that the public service concessions, although not regulated by specific directives, are subject to the general principles laid down in matter from the founding treaty, as clarified by more 'times reminded interpretative communication of 29 April 2000. in particular the administrative judge has revealed the following: "in terms of custody, through concession of public services of Community relevance, respect for the fundamental principles of 'Community law (obtainable primarily by articles 43 and 49 of the EC Treaty) as well as' the principles General that govern matter of public contracts (enucleated by the directives in matters of works contracts, services, supplies and excluded sectors), requires the administration proceeding to operate with mode 'that preserve the publicity' of credit and non-discrimination of companies , merchandise 'the use of selective competitive procedures. A no different conclusions on the needs' of conducting a competitive process, also arrives wanting to consider the assignment in question as a concession for the construction and management of public work. It 'was, indeed, recognized the general applicability of the rules on public works concessions provided for in the law 11 February 1994, n. 109: piu 'specifically, the provisions of art. 19 'was considered to be the fundamental status of the institute for works concessions, which must be applied regardless of the method used for the award and even if the grant is prepared with the law (cf.. Cons. State, sect. IV, 28 May 1997, n. 584; Court of Auditors, sec. contr. State, 8 June 2000, n. 55, according to which in accordance with art. 20, paragraph 2 of law n. 109 of 1994, the only way to the selection of the concessionaire and 'that of the private treaty). In apparent adherence to the approach described, which constitutes the point of reconnaissance emergence, the law 24 November 2000 n. 340 (Art. 21), it states that "for the construction and reliance in motorway infrastructure management, the provisions that Italian law transposing Community legislation on works or services". 6) It should also be reminded of the recent circular of this Department (cf. Circular no. 12727 regarding custody to companies' joint management of local public services, published in the Official Gazette no. 264 of 13 November 2001), with reference the system of local public services management to the front amendments made to article. 113 of Legislative Decree of 18 August 2000, n. 267 art. 35 of the Budget Law for 2002 (Law 28 December 2001 n. 448), said the legislation is applicable to the award of the management of local public services to companies' mixed (public-private). On this occasion, you 'and made clear that European legislation on public procurement, particularly of services, does not apply (and thus the direct assignment of the management of the service and' allowed without recourse to public procedures prescribed by Community standards) only when missing a real legal relationship between the public entity and the entity manager, as in the case, according to the terminology of the Court of Justice, the inter-departmental delegation or entrusted service, exceptionally, "in house" (cfr. the Court of Justice judgment of 18 November 1999 in Case C-107/98 Teckal). In other words, when a contract is concluded between a local authority and a separate legal entity, the application of the Community can 'directives to be excluded in the event that the local authority exercises over the person in question a control similar to that exercised over its services and this person (legal) achieves the most 'essential part of its activities' with the institution or with the local authorities that control it. In particular, in the opinion of the Community institutions to control similar means an equivalent report, the purpose of the practical effects, to a relationship of subordination; This situation occurs when there is a compelling financial and managerial control of the public body corporate ENTITY. In that event, therefore, the direct assignment of the management of the service and 'it allowed without recourse to public procedures prescribed by the Community foregoing provisions. On the contrary, if there occurs such a managerial and economic control of the public body on the managing entity but custody is for a service in exchange for the same management as consideration (and therefore constitutes, according to the committee's interpretation, a service concession ) the award of the service must in all cases be in accordance with the Community principles of transparency and equal 'treatment which impose the need' to follow public procedures. The need 'compliance with the Community rules on public evidence' was altresi 'emphasized even more' recently by the Decree of 22 November 2001 by the Ministry of Environment and the associated circular Application October 17, 2001, n. GAB / 2001/11559 / B01, concerning the modalities' of concession to third parties management of integrated water services, in accordance with art. 20, paragraph 1, of the Law of 5 January 1994, n. 36. It should finally be noted that Article. 35 of the Budget Law for the year 2002 has redesigned in depth 'reliance on the system of local public services by giving the floodgates to a renewed regulatory framework in which, on the one hand, it establishes the principle of separation of property' networks and infrastructure with respect to the management of the service task and, secondly, it makes the award of public service management of industrial relevance accomplishment of selective procedures inspired by EU principles (see., in particular, paragraphs 5 and 7 art. 35 of the law of 28 December 2001, n. 448). 7) Second, it is necessary to draw a further distinction between service concessions and works concessions, aimed at establishing whether or not to apply the "Works Directive". This distinction is based on a criterion of "functional prevalence" and implies that if a concession contract covers the construction of a work as the main object of the contract you will treat 'of a works concession and, as long as' the threshold for application of the Directive is been reached (5,000,000 Euros), will be 'raised the arrangements in the "works Directive". Conversely, if the works or the construction of the work is merely incidental to the principal object of the contract represented by public service management, not will apply 'the "Works Directive" as service concessions fall under the application of norms and principles of the Treaty (cf.. interpretative Communication, cit., point 2.3 and the Court of Justice judgment of 19 April 1994 in Case C-331/92 Gestion Hoteliere and judgment of 5 December 1989 in Case C-3/88, Data processing ). 8) This distinction is relevant in particular for motorway concessions: for these figures it will be necessary 'to establish whether the object of the concession concerns principally the construction of infrastructure such as a new motorway, in which case we will treat' of a concession works. Conversely if the contract gives rise to a relationship in which the management aspect is predominant relief and contemplates the construction work is only incidental, it will treat 'of a service concession. The qualification of a motorway concession as a related service concession implies, ultimately, not assessing, for the purpose of the initial allocation of the concession so 'as in the case of extension, the public procurement directives, subject to the application of norms and principles of the EC Treaty, which in particular the principles of non-discrimination, equal 'treatment, transparency, mutual recognition and proportionality'. 9) Moreover, and 'also possible that certain operations covering both the creation of a work or the creation of jobs that provide services. So, on the sidelines of a works concession, they may terminate the service concessions for activities' complementary but independent of the exploitation of the concession. For example, motorway catering services may be the subject of a different service concession from the construction concession or management. According to the commission when the objects of contracts may be separated, for each type of contract the rules apply to this article (cf.. Interpretative Communication, cit., Point 2.3). 10) Under these definitions, the use of pooling concession by the Member does not meet specific limits but does not make a free choice of the person to be entrusted with the grant. Leaving aside the applicability 'of specific schemes, all the concessions fall within the scope of the provisions of Articles 28 to 30 (ex Articles 30 to 36), 43 to 55 (ex Articles 52 to 66) of the Treaty to the principles emerging from the case. It is in particular the principles of non-discrimination, equal 'treatment, transparency, mutual recognition and proportionality' so 'as the result of the constant tradition of case law of the European Court and that' vanguard in their elaboration. 11) The principle of equal 'treatment means that the grantors administrations while being free to choose the award procedure most' appropriate to the characteristics of the sector concerned and to establish the requirements that candidates must meet throughout the various phases of the procedure, must then ensure that the choice of the successful candidate to be based on objective criteria and the procedure to be conducted by the rules and requirements initially established (cf.. Court of Justice judgment of 25 April 1996 in Case C-87/94 Walloon Buses, paragraph 54). The commission identifies as examples of practices contrary to the equal 'treatment of those allowing the acceptance of bids not complying with the specifications or amended after being opened or the consideration of alternative remedies if the possibility' is no provision from the initial project. The subjection of service concessions to the principle of non-discrimination, in particular on the basis of nationality ', and' was recently confirmed by the Community case-law, which has stated that the obligation of transparency to which the administrations are required is to ensure, in the benefit of any potential tenderer, a degree of advertising 'in order to open procurement of services to competition as well as' the impartiality' of the procurement procedure (Court of Justice, judgment of 7 December 2000 in Case C-324 / 98, cit., considered n. 62). 12) The principle of transparency and 'closely linked to that of non-discrimination because' to conditions of competition are not distorted, and requires that the grantors authorities make public by appropriate means of advertising ', their intention to resort to a concession. According to the indications of the European Commission (see. Point 3.1.2 of the interpretative communication) such forms of advertising 'must include the information necessary so that' potential concessionaires are able to assess their interest in participating as an indication of the criteria selection and attribution, the object of the concession and of the services expected from the concessionaire. It WILL BE FOR 'then particularly national courts to examine whether those obligations have been met through the adoption of appropriate rules or administrative practices. For works concessions, in addition to the information set out above, the Directive. 93/37 / EEC (Art. 11) provides for a special regime in Advertising 'rules that result in the obligation for contracting authorities to publish in the Official Journal of the Community' European a concession notice in the manner customary in the Directive to the end of the contract up for competition at the European level. Once you fulfilled these advertising 'preliminary, and moving the government leaves them free to choose the Directive more' appropriate steps, including the possibility 'of negotiated procedures, while the national legislation (art. 20, paragraph 2 of Law no. 109, 1994) prescribes, for the award of public works concessions, the private tender. 13) The principle of proportionality 'must be applied in the regulation of concessions: that' means, in particular, and moving governments should adopt necessary and proportionate measures in relation to the objective of avoiding staring professional or financial requirements disproportionate to the object the concession. The principle is also applicable to the profile of the duration of the concession that can not 'exceed the period necessary to recoup investments and remunerate capital, notwithstanding the permanence of the risk management of the licensee as already' previously described (see. Court first instance, judgment of 8 July 1999 in Case T-266/97 Vlaamse Televisie Maatschappij NV). 14) The principle of mutual recognition implies for the concessions that the State in which the service and 'provided must accept the technical specifications, checks, titles and certificates prescribed in another Member State to the extent that these are recognized as equivalent to those required by the member State recipient of the service. 15) The principle of the protection of fundamental rights, falling under the common traditions of Member States, requires that any denial of measures taken by the authorities for the granting of concessions or management of procedures intended purpose must be reasoned and is the subject of appeals judicial by their recipients. Regarding in particular works concessions Article. 1 of the Directive. 89/665 / EEC provides that where the decisions of contracting authorities have infringed Community law on public contracts or national rules implementing that law, Member States take the necessary measures to ensure that these decisions may be reviewed effectively and as much 'as quickly as possible. 16) Such being the ceiling provided by Community principles, this Department invites the authorities concerned to comply with the mentioned requirements for the granting of concessionary measures, the selection procedures of its management and the adoption of any measures resulting from the extension or renewal. It notes in particular that, even in the event 'of concessions not subject to the requirements dictated by specific regulations or internal rules, the concessionaire shall normally be the result of a competitive and competitive procedure inspired by the principles of the Treaty of Establishment, so to allow, through suitable forms of advertising ', the possibility' by the undertakings concerned to explicate their chances of participation. It is recalled in this regard that the use in the Community scheme to the direct selection of the concessionaire, as an exception to the above principles, constitutes exceptional occurrence, justified only in case of specific technical and economic reasons which make it impossible in terms of rationality 'to identify a person other than the one chosen. The same considerations can be extended to the hypothesis of an extension of the already 'made concessions, being known the equality enshrined in Community law in the new concession issuing and extension of the concession expiring. It points conclusively that the failures of the above Community rules could make the Italian state recipient of infringement proceedings by the European Union and require the activation of subsequent action. Rome, March 1, 2002 The Minister for Community policies Buttiglione Join the Court of Auditors April 12, 2002 Institutional Ministries, log n. 4, page no. 105