Article 115 · Definition and characteristics of concessions

1.For the purposes of this Regulation, the following definition shall apply:

(a)‘concession’ means a contract for pecuniary interest, regardless of its formal designation, where one or more public buyers entrust the execution of works or the provision and management of services to one or more economic operators (‘concessionaire’) for benefit of users and that complies with the following conditions:

(i)the remuneration of the concessionaire consists either solely in the right to exploit the works or services that are the subject of the contract or in that right together with payment by the public buyer; and

(ii)it entails the transfer to the concessionaire of an operating risk in exploiting those works or services to which the public buyer would be exposed if it was to execute the works or perform the services itself.

(b)The concession provides for legally enforceable obligations under which the public buyer determines the nature, scope and conditions for the execution of the works or the provision and management of services by establishing specific requirements to ensure that the concessionaire performs those tasks in pursuit of the objectives defined by that public buyer and complies with those requirements, throughout the duration of the concession.

(c)The concession has as its subject-matter the performance of those works or services and shall not consist merely in the entitlement of all operators fulfilling certain conditions to perform a given task without any selectivity.

Agreements the sole or predominant subject-matter of which is the granting of a right to occupy or exploit public domain or resources, including leases or other rights relating to public property, as well as rights of way or other permissions allowing the use of the public domain for infrastructure or network deployment, and in respect of which the public buyer establishes only general conditions of use without entrusting the performance of specific works or services, shall not constitute concessions within the meaning of this Regulation.

2.For the purpose of paragraph 1, ‘operating risk’ means the risk that the concessionaire will not recoup, under normal operating conditions, the investments made and the costs incurred in the execution of the works or the provision and management of the services which are the subject-matter of the concession, so that the concessionaire bears the risk of losses attached to the performance of the concession, such as risks linked to uncertainties affecting demand, revenues, operating costs, availability, technical and operational conditions or performance. The operating risk shall involve genuine exposure to the changing market conditions, and any potential estimated loss incurred by the concessionaire shall not be economically insignificant.