In its Judgment of 14 November 2013 in case C-388/12 Comune di Ancona, the CJEU has put forward an argument for the existence of cross-border interest in the award of (public service) concession contracts that openly challenges the quantitative rationale followed by the planned new Directive on Concessions.
The new Directive on Concessions is premised on the basis that cross-border interest will (only?) exist where the value of the contract is above €5 million, calculated as the estimated total turnover of the concessionaire generated over the duration of the contract, net of VAT (art 6). This is clearly indicated in its Recital (10):
This Directive should only apply to concession contracts whose value is equal to or greater than a certain threshold, which should reflect the clear cross-border interest of concessions to economic operators located in other Member States (emphasis added).
Such a quantitative approach to determining the existence of a cross-border interest may be difficult to reconcile with the qualitative approach followed by the CJEU in Comune de Ancona.
In the case at hand, a concession for the management of a European Regional Development Fund (ERDF)-supported portuary infrastructure (a slipway) was directly awarded by the Comune di Ancona to the local fishermen cooperative. The justification provided for the direct award was, rather simply, that 'it was not necessary, for the purposes of granting a concession for management of the slipway, to publish a call for tenders, in so far as no operators apart from the Pescatori cooperative were interested in that concession' (C-388/12 at para 16). In part, one of the reasons to consider that there would be no other bidder for the concession was that the concession was awarded
subject to a number of conditions. These included the obligation to pay the Comune di Ancona an annual charge calculated in such a way as to avoid substantial net revenue being generated for either the concession-granting authority or the concessionaire; a prohibition on modifying the implementation conditions of the operation eligible for funding; a prohibition on engaging in profit-making activity; the obligation to comply with all the applicable EU directives and standards; and the obligation to maintain the public-service function and intended use of the structure at issue. It was also stated that the slipway was to remain, in any event, the property of the Comune di Ancona (C-388/12 at para 12).
In a thoughtful and market-realistic approach to the existence of potential (corporate) interest in being awarded a non-revenue generating concession as a first step into a new market, the CJEU has clearly indicated that
50 [...] the Comune di Ancona has not invoked any objective facts capable of explaining the lack of any transparency in the award of the concession. On the contrary, it maintained that the concession was not liable to interest undertakings located in other Member States, in so far as the concession granted to the Pescatori cooperative was designed so as not to be capable of generating substantial net revenue for its beneficiary or an undue advantage for the latter or for the municipality.
51 However, the fact that a concession is not capable of generating substantial net revenue or an undue advantage for an undertaking or for a public body does not, in itself, support the inference that the concession is of no economic interest for undertakings located in Member States other than that of the contracting authority. In the context of an economic strategy to extend part of its activities to another Member State, an undertaking may take the tactical decision to seek the award in that State of a concession despite the fact that that concession is incapable as such of generating sufficient profit, since that opportunity could nevertheless enable the undertaking to establish itself on the market of that State and to make itself known there with a view to preparing its future expansion.
52 [...] in circumstances such as those of the case before the referring court, EU law does not preclude the award, without a call for tenders, of a public service concession relating to works, provided that that award is consistent with the principle of transparency, observance of which, without necessarily entailing an obligation to call for tenders, must make it possible for an undertaking located in the territory of a Member State other than that of the contracting authority to have access to appropriate information regarding that concession before it is awarded, so that, if that undertaking so wishes, it would be in a position to express its interest in obtaining that concession (C-388/12 at paras 50-52, emphasis added).
In my view, the argument used by the CJEU in para 51 of Comune di Ancona is sound in terms of business strategy and makes perfect sense. However, even if it focusses on 'net revenue' and the threshold of Art 6 of the future Concessions Directive only refers to 'total turnover' (hence, they are not in stark conflict, as the threshold may catch concessions with a high turnover but very low operational or commercial margins), the qualitative approach followed by the CJEU should trigger some red flags.
I find that this shows that the quantitative approach adopted by the future Directive on Concessions will not mark the end of the story in the ongoing discussion regarding the rules and requirements applicable to contracts not covered by the procurement Directives--and, more specifically, to services concessions. It seems to me that a dual legal regime will persist between 'Directive concessions' and 'Ancona concessions', where the CJEU will continue pointing out to the potential existence of cross-border interest for concessions with a value below €5mn (or in the excluded and preferential sectors, such as water or social services).
If that is so, the passing of the new Directive on Concessions will only have increased legal complexity in this area and should not be seen as a necessarily positive development [as discussed in A Sánchez Graells, 'What Need and Logic for a New Directive on Concessions, Particularly Regarding the Issue of Their Economic Balance?' (2012) European Public Private Partnerships Law Review 2: 94-104]. I guess that, once more, we will need to keep an eye on further developments of the CJEU case law.