Friday, June 9, 2017
On 23 May 2017, the Concessions Directive (2014/23/EU) was finally implemented into Irish law, over a year after the Public Contracts Directive (2014/24/EU) and the Public Utilities Directive (2014/25/EU) were transposed. The European Union (Award of Concession Contracts) Regulations 2017 (S.I. 203/2017) (the “Regulations”) are retrospective in effect, meaning that the new regime is deemed to have taken effect from April 2016 (when the Directive should have been implemented). This could raise some questions about recently procured concession arrangements and the applicability of the new regulations.
For the first time, service concessions will be regulated alongside works concessions. (Previously, service concessions were excluded from the application of the procurement directives and only regulated through the application of the EU Treaty principles while works concessions were subject to some limited rules under the old classic directive).
What is a concessions contract?
A concessions contract is a contract of the same type as a public service or public work contract except for the fact that the consideration for the provision of the services or the works consists either solely in the right to exploit the service or works or in this right together with payment. As a result, any risk associated with the contract generally transfers to the concessionaire.
Key features of the Regulations: