The Rules on Performance of the Concession Contract under the 2014 Concession Directive and the Triangle of Rights: A Brief Dialectic

This paper examines the post-award mechanisms for verifying the legality of concession contract performance, modification and/or termination as laid down under Directive 2014/23/EU. It begins by an attempt to understand whether, for the purpose of the directive, this should have been contemplated at all and then questions if the rules under the directive on performance of contract provide for effective and adequate tools to avoid abusive conduct from either the contracting authority/entity or the concessionaire, but also, whether these rules on performance of contract allow in any way for third parties to the contract to voice any breach of their own rights and interests. As far as the last research question is concerned, the starting point lies in the fact that, generally, long term concession contracts imply a shift of paradigm whereby, during the performance of the contract, the role of individuals towards the contracting entity/authority changes from one of citizens to one of consumers. This implies that the concessionaires become responsible for a service that affects the rights of members of the community greatly but also that such members of the community need to be given the legal remedies to voice the breaches of their rights, whether towards the concessionaires or the administration. The study tries to identify if such aspects have been contemplated at all in the European legal texts and if not, whether and how they should have been. At a first glance however, the rigidity of the Directive’s texts as regards concession modifications triggering the applicability of the award rules under the Directive, the procedural guarantees therein as well as the remedies stipulated under Directive 89/665/EC to any modification that might have an impact upon the contract seem to create a sufficient (if not excessive as it has been argued), remedial mechanism. Finally, the paper raises and tries to answer the question of how a fairly balanced mechanism of remedies would look like in the complex triangle of rights of the concessionaire, the contracting authority/entity, and citizens/consumers during the performance of a concession contract.