Service concession
A service concession is a form of delegating a state or municipal task to a third party. Service concessions are characterized by the fact that the concessionaire receives the right to commercial use and / or exploitation in return for the provision of the services instead of remuneration. The licensee bears the economic risk of use and exploitation. Often it is an operator model within the framework of a public private partnership .
Examples
Examples of a service concession are e.g. B. the right to erect and operate a cremation facility, the leasing of communal land and buildings with the contractual obligation to operate public parking facilities and the renting or leasing of sales outlets for the minting and distribution of license plates.
Another example is the award of concessions for electricity networks, also known as electricity concessions. As a rule, they include the right to use public transport routes to build and operate lines for power supply, e.g. B. in a community, so the operation of the local power grid and ensuring the power supply on site, cf. Section 46 EnWG.
Procurement law consideration (from reaching the threshold value)
Service concessions were excluded from the scope of secondary European procurement law (procurement coordination guidelines ) until May 17, 2016 (cf. Art. 17 Directive 2004/18 / EC, Art. 18 of Directive 2004/17 / EC). There were no express exceptions in the German public procurement rules; However, it was based on a guideline-compliant interpretation (even if the Federal Court of Justice expressed itself somewhat cautiously and spoke of a "widespread" view (BGH, decision of December 1, 2008 Az .: X ZB 32/08)).
Since May 18, 2016, all concessions, including service concessions, have been subject to Directive 2014/23 / EU on the award of concessions and, among other things, Part 4 of the German Act against Restraints of Competition (GWB) , which transposes this into national law, and the ordinance on the award of concessions (KonzVgV) , as far as the threshold according to § 106 II No. 4 GWB has been reached or exceeded.
Consideration under European law (below the threshold value)
In the opinion of the EU Commission, public bodies that conclude a contract for service concessions have to observe the basic rules of the contract on the functioning of the European Union in general and the prohibition of discrimination on grounds of nationality in particular , even below the threshold value . The latter also includes the principle of transparency. The Federal Government sees it differently, since below the threshold set by the EU itself, only the respective state, but not the EU, is competent to regulate. This dissent still exists and has not yet been decided by the courts at the highest level.
The contractual provisions which, according to the EU Commission view, are specifically applicable to public service concessions include Article 43 EC, paragraph 1 of which prohibits restrictions on the free establishment of nationals of one Member State in the territory of another Member State, and Article 49 EC, the Paragraph 1 stipulates that restrictions on the freedom to provide services within the Community are prohibited for nationals of the Member States who are resident in a Member State other than that of the recipient of the service. In addition to the prohibition of discrimination on the basis of nationality, these regulations also include the general principle of equal treatment of bidders. The principle of equal treatment and the prohibition of discrimination on grounds of nationality include, in particular, an obligation of transparency so that the public authority granting the license can determine whether they have been observed. The transparency obligation consists in the fact that the named body has to ensure an appropriate degree of publicity for the benefit of the potential bidders, which opens the service concession to competition and enables the verification of whether the award procedures have been carried out impartially.
literature
- Bettina Ruhland: The service concession. Term, location and legal framework of the award . Nomos, Baden-Baden 2006, ISBN 3-8329-2092-7 , ( publications on economic administration and procurement law 9), (also: Bochum, Univ., Diss., 2005-2006).
- Roderic Ortner: Allocation of service concessions. With special consideration of the disposal and transport industry . Carl Heymanns Verlag, Cologne et al. 2008, ISBN 978-3-452-26653-8 , ( Cologne writings on European law 44), (At the same time: Cologne, Univ., Diss., 2007).
- Alexander Petschulat: The future of the service concession . apf (training, examination, professional practice) 2009, 241 ff.
Individual evidence
