Edited by Grith S. Ølykke and Albert Sanchez-Graells
Chapter 14: The magic of five in the duration of concessions: refining corollaries in the Concessions Directive
The Concessions Directive aims at providing for clear but simple rules applying to the award of concessions. Whereas some of these rules are just ‘light’ versions of similar provisions in the 2014 Directive, other rules in the Concessions Directive lack such counterparts. This holds true, in particular, for Article 18, which started, above all, as a codification of the CJEU’s case-law: the duration of concessions should be limited to the time necessary to recoup the investments together with a reasonable return on invested capital. However, the legislative process introduced a minimum period of five years as a scope condition for this ‘principle of maximum duration’. Where Commission, Council and Parliament seemed happy to agree on this issue, it is submitted that the CJEU will have no reason to respect this ‘lower bound’ of five years. Instead, the CJEU will consider this ‘principle of maximum duration’ as a corollary rule, deriving directly from the fundamental freedom of movement. Thus, this principle will also apply to concessions with a duration of less than five years and to concessions below the threshold value, irrespective of the boundaries introduced by the Concessions Directive.
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