Source: European Parliament
The Commission does not have detailed information on the case, thus, a reply can be only general. Direct awards of public contracts or concessions, without a public call for tender, might infringe EU competition law or other applicable provisions of EU legislation, namely Directive 2014/23/EU[1], Directive 2014/24/EU[2] or Directive 2014/25/EU[3], depending on the nature, the subject matter and the value of the contract.
Port services are subject to Regulation (EU) 2017/352[4], which applies to all maritime ports of the trans-European transport network. Under Article 6(4) of the Port Services Regulation, where the managing body of the port, or the competent authority, decides to limit the number of providers of a port service, it shall follow a selection procedure which shall be open to all interested parties, non-discriminatory and transparent.
Under EU competition law, a case-by-case assessment is required. Failure to comply with a legislation adopted by a Member State cannot constitute a per se violation of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
However, the behaviour arising out of such failure to comply with a national legislation might also cause an infringement of Articles 101 and 102 TFEU.
If a State measure causes an infringement of EU competition law, the Commission may start proceedings pursuant to Article 106 TFEU in conjunction with Articles 101 and/or 102 TFEU.
Similarly, in case of finding of a breach of the applicable EU rules on the award of public contracts or concessions, the Commission may initiate an infringement procedure against a Member State under Article 258 TFEU for failure to comply with its obligations under EU law.
- [1] Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, OJ L 94, 28.3.2014, p. 1-64.
- [2] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, OJ L 94, 28.3.2014, p. 65-242.
- [3] Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, OJ L 94, 28.3.2014, p. 243-374.
- [4] Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017 establishing a framework for the provision of port services and common rules on the financial transparency of ports, OJ L 57, 3.3.2017, p. 1-18.