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the Instruction 2014/23/ЕС about award kontsessionnyh agreements

Kontsessionnye agreements were never regulated before by the separate certificate, but to say that they did not come under to regulation at all at level of the European Union also it is impossible. Before introduction of the separate instruction devoted to concessions, such agreements were regulated by separate positions about public procurements on performance of works or on rendering of services.

[186] however such partial regulation kontsessionnyh agreements created many obstacles both for participants of economic relations, and for home market as a whole. Absence of high-grade regulation allowed the state customers to award such contracts directly, without carrying out of transparent and competitive procedures that was quite often expressed in
Preference of national suppliers and corruption, and also an inefficient expenditure of budgetary funds. The new instruction 2014/23/ЕС, accepted within the limits of reform of 2014, urged to eliminate blanks in award kontsessionnyh agreements at carrying out of public procurements.

First of all, it is necessary to notice, that on sense of the Instruction 2014/23/ЕС concessions are understood as the cummutative contracts concluded in written form between the customer and the concessionary on performance of works or rendering of services in which frameworks as a payment for the performed work or the rendered service possibility is to use result of work or service (it is exclusive or along with monetary compensation). [187]

If to draw parallels with the Russian legislation is the closest to such understanding of concessions the Federal act from 21.07.2005 N 115 FZ "About kontsessionnyh agreements" [188] though a number of differences nevertheless takes place has approached. So, for example, the Russian federal act provides as a concession subject only transfer of real estate for manufacture of works while the European instruction covers not only performance of works in frameworks kontsessionnyh agreements, but also rendering of services.

Award of concession of works or services includes transfer to the concessionary of operational risk to operation of these works or services. Operational risks can concern either demand, or the offer, or a supply and demand. It is supposed, that the concessionary has accepted on itself operational risks when under normal conditions operation return of investments or the expenses suffered at operation of works or services, being a concession subject is not guaranteed. Thus the operational risks transferred to the concessionary, are connected with behaviour of the market in such a manner that any potential loss suffered by the concessionary, cannot be simply nominal or insignificant.

The special attention should be turned on that circumstance, that in difference from other certificates of the European Union in the field of public procurements, the Instruction 2014/23/ЕС allocates two categories of customers: bodies-customers (English contracting authorities, fr. pouvoirs adjudicateurs) and establishments-customers (English contracting entities, fr. entites adjudicatrices). Thus the symbol should not mislead - speech does not go at all about differentiation of customers depending on their organisation-legal form or the status. In each of the designated categories the state, regional or municipal bodies fall; which activity is regulated by the public law, the associations created by one either several such formations or one or several bodies which activity is regulated by the public law.

As criterion of differentiation the field of activity of the customer designated in the appendix II to the Instruction serves.

It is curious, that the given differentiation reminds differentiation of sphere of action between the Instruction 2014/24/ЕС and the Instruction 2014/25/ЕС, after all the same branches of economy (warmly - vodo - gazo - electrosupply, post services) in the appendix also are designated. Thus, drawing parallels with the above-named instructions, bodies-customers (English contracting authorities, fr. pouvoirs adjudicateurs) are "base" customers at award kontsessionnyh agreements, and establishments-customers (English contracting entities, fr. entites adjudicatrices) are "branch", or "sector" customers.

Besides, it is necessary to discriminate kontsessionnye agreements on sense of the Instruction 2014/23/ЕС and so-called administrative concessions (permission). [189] In the first case it is a question of the contractual nature of relations between the customer and contractors who are developed at carrying out of corresponding tender procedures and are realised after contract award. In the second case the nature of relations is administrative,
Constructed on "permission" or "commission" to rendering of any service, the expressed in the form of unilateral state or municipal bodies [190], and such activity does not come within the purview of the Instruction 2014/23/ЕС [191 [192], and is regulated, besides other, the Instruction 2006/123/ЕС about 191

Services.

As well as the basic instructions in the field of public procurements, the Instruction 2014/23/ЕС is constructed on a principle of the minimum cost of the contract which constitutes for kontsessionnyh agreements 5 186 000 of euro without the VAT. The agreements which cost less than the specified sum, are regulated by the national law with observance of the all-European principles nediskriminatsii and the equal reference.

From a subject of regulation of the instruction on concessions delicate questions of public procurements in the field of defence and safety (for example when at carrying out of purchases from the state it is required to give the information which disclosing threatens defensibility and safety of the state), and also, in particular, financial services, services of the arbitration courts and mediatorov, notarial services, services in the field of a civil defence, services within the limits of election campaigns are withdrawn most.

Kontsessionnye agreements, according to the Instruction 2014/23/ЕС, cannot be concluded for unlimited term, however a deadline in numerical expression also is not established. Term kontsessionnogo agreements should be limited, but if kontsessionnoe the agreement is concluded for the term of more than 5 years in no event agreement period of validity cannot exceed term during which the concessionary can reasonably pay back investments into the project. Such strange at first sight the measure is undertaken not to admit restriction by the concessionary of a competition in the market.

After a notice direction about competition carrying out on the conclusion kontsessionnogo agreements at potential participants are not less than 30 days for demand granting. If selection occurs in some stages term of giving of demands is reduced till 22 days. Also term can be reduced to 5 days if demands can be directed in the electronic form.

Thus, the instruction about kontsessionnyh agreements which were not regulated before independently at level of the European Union, has been apprehended ambiguously enough. On the one hand, it is obvious to meet aspiration lacks in EU legislation, and the fact of acceptance of the instruction in this area already speaks about much. On the other hand, there are many difficulties which for today interfere with effective regulation of concessions on nadnatsionalnom level. Also it is a question not only of complexity of concessions as those (considering, as a rule, scale and a technical aspect of such projects). In view of the specified complexity the European legislator has rather cautiously approached to the first attempt of regulation kontsessionnyh agreements, than and member states use, transforming the flexible mechanism in set of openings. It is possible to assume, that in the near future the European legislator will make additions and specifications to legal regulation of this important sphere.

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A source: Kamaljan Arthur Mihajlovich. LEGAL REGULATION of PUBLIC PROCUREMENTS In the EUROPEAN UNION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2018. 2018

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