11 Award of concession contracts
| (33584)
18960/11
+ ADDs 1-2
COM(11) 897
| Draft Directive on the award of concession contracts
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| Legal base | Articles 53(1), 62 and 114 TFEU; co-decision; QMV
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| Department | Cabinet Office
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| Basis of consideration | Minister's letter of 10 July 2013
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| Previous Committee Reports | HC 428-lii (2010-12), chapter 4 (29 February 2012), HC 86-xxi (2012-13), chapter 4 (28 November 2012) and HC 86-xxii (2012-13), chapter 5 (5 December 2012)
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| Discussion in Council | See para 11.9 below
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
11.1 According to the Commission, concessions are similar
to contracts for works or services, except that the consideration
(benefit) received by the economic operator comprises the right
to exploit the concession. However, although there have since
the early 1990s been EU directives governing contracts awarded
by public bodies and certain utilities, there had been only minimal
specific rules governing the award of concessions. The Commission
considered that this gives rise to uncertainty and to serious
distortions of the internal market, and it therefore put forward
in December 2011, in parallel with its proposals to modernise
procurement by public authorities and utilities,[40]
this draft Directive, which would extend and expand the EU rules
governing the award of works and services concession contracts
by both public authorities and utilities.
11.2 The contents of the proposal were set out
at some length in our Report of 29 February 2012. Whilst we commented
on the considerable similarities between this proposal and the
parallel proposals on public procurement and that by public utilities,
we noted that this proposal did not contain any explicit reference
to the establishment of a national oversight body, and hence did
not in itself give rise to the sort of concerns over subsidiarity
and human rights, which we had drawn to the attention of the House
in our Reports on those other proposals (or to the need for a
Reasoned Opinion). However, as negotiations on all three proposals
were likely to proceed in parallel, and the Government intended
to provide further information as these unfolded, we said that
we would hold the document under scrutiny.
11.3 We subsequently received a letter of 15
November 2012 from the Minister for Political and Constitutional
Reform (Miss Chloe Smith), in which she said that, although discussions
so far had concentrated on the other measures, the Presidency
had recently picked up the pace on this proposal. In line with
the wishes of many Member States, the text had been substantially
simplified and streamlined, with most of the proposed rules governing
electronic communication having been removed; the specific rules
governing the procurement process and negotiations, and the criteria
for the award of concessions, having been simplified; and concession-awarders
given considerable discretion. She concluded by asking if we
could either clear the document, or, failing that, grant a waiver
under paragraph 3(b) of the Scrutiny Reserve Resolution, in order
to enable the Government to support the revised text in the Council.
11.4 In considering the Minister's request, we
were conscious that, in the case of the proposals on public procurement
and public entities, we had said that, whilst we felt it would
be right to hold the documents under scrutiny in view of the number
of outstanding issues, we were prepared to grant a scrutiny waiver.
However, we were not yet persuaded that such a waiver would be
justified in the case of this document, bearing in mind that the
Government had seen no compelling reason why there needed to be
a separate directive on concession contracts, and had repeatedly
voiced concern in Brussels that separate negotiations and directives
could lead to anomalies. Since it was not clear to us whether
the Government had abandoned that view, and, if so, what had led
it to do so, and we said in our Report of 28 November 2012 that
we would like some more explicit indication of whether (and how)
other more detailed concerns set out in our previous Report had
been met. We therefore said that in view of these uncertainties,
we proposed to hold the document under scrutiny, without granting
a waiver, pending further information.
11.5 We next received from the Minister a letter
of 3 December 2012, in which she said that the Government's original
concerns that a separate directive would lead to unwanted divergence
and anomalies between the concessions proposals and the other
proposals had been allayed in practice, as the Presidency, supported
by Member States including the UK, had specifically structured
the negotiations to enable consistency between the directives
where relevant, and ensure that any differences were intended
and agreed, and not an accident of diverging processes. She also
said that, during the negotiations, the concessions proposal had
been significantly simplified, and that, where divergence was
appropriate, it was generally simpler than the public procurement
directive. The Minister said that she was therefore content that
a separate directive for concessions had not in fact created problems
in practice, or led to a less favourable outcome than would have
been the case had the rules been included in the same directives
as those for public procurement and utilities, and she added that
other specific points mentioned previously had been pursued by
the UK in the negotiations to an acceptable outcome.
11.6 We said in our Report of 5 December 2012
that we were grateful to the Minister for this further information,
in the light of which we were prepared to grant a waiver under
paragraph 3(b) of the Scrutiny Reserve Resolution. However, as
with the corresponding proposals on general public procurement
and that by entities, we were holding the document under scrutiny,
and would like to be informed of the outcome of the negotiations.
Minister's letter of 10 July 2013
11.7 We have now received from the Minister
a letter of 10 July 2013, which is concerned mainly with recent
developments on the proposals relating to public procurement and
public entities. However, she also confirms that the improvements
achieved on this proposal have been maintained, and — as
with the other two proposals — she asks if we would now
be prepared to clear the document in advance of the consideration
which the Council is due to give to the outcome of the trilogue
negotiations between the Council, Commission and European Parliament,
which the Government supports.
Conclusion
11.8 We are grateful to the Minister for this
update, in the light of which we see no need to retain this document
under scrutiny. We are therefore clearing it.
40 (33586) 18966/11 and (33585) 18694/11: see Chapter
12 of this Report. Back
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