The European Commission has presented a proposal for a regulation that amends the EU public procurement framework and establishes new provisions for awarding and managing works and services concessions, applying to certain port activities. The initiative introduces specific criteria for determining contract duration, assessing committed investments, allocating economic risks, and regulating changes to concession terms during their term.
The text, identified as COM(2026) 590 and presented last September 9, provides for the replacement of the 2014 European public procurement directives with a single regulation directly applicable in the Member States. The proposal brings together in one instrument the provisions relating to public contracts, procurement in special sectors, and concessions, which are currently governed by separate rules.
One aspect of the reform concerns the definition of a concession. Article 115 provides that these contracts must involve the execution of works or the provision and management of services, with remuneration linked to their exploitation and an effective transfer of operational risk to the concessionaire.
However, the proposal expressly distinguishes these contracts from agreements whose sole or predominant purpose is to permit the occupation or exploitation of public domain property. Where the administration merely sets general conditions for use, without entrusting the operator with specific works or services, these agreements fall outside the definition of a concession set out in the regulation. This distinction is relevant in determining which activities carried out at port facilities would be subject to the new provisions.
Regarding concession periods, Article 122 provides that the duration must be limited to the time needed to recover the investments made, together with a return on invested capital under normal operating conditions. To set this period, consideration must be given to initial and subsequent investments, operating and maintenance costs, expected revenues, and the allocation of risks between the parties.
The document also recognizes the need to ensure that activities are periodically exposed to competition. Contracting authorities may set the contract duration in advance or allow it to be included in the bids submitted by tenderers, provided that the criteria used to assess it are defined.
Any extensions, reductions, or adjustments to the periods must be provided for through clearly defined conditions and methodologies in the contract documents. Where such changes are not initially provided for, they will be considered modifications to the concession and must comply with the relevant provisions.
The allocation of economic risks is another element regulated by the proposal. Article 120 requires administrations to assess the main risks associated with exploitation before starting the award procedure. This analysis must distinguish operational risks arising from the activity and market uncertainties from those related to the general performance of the contract.
Regarding contract modifications, Article 125 allows certain changes to be made without launching a new tender, provided they are not substantial or fall within the cases provided for in the legislation. Modifications whose value does not exceed 15% of the initial amount may be considered non-substantial, provided they do not alter the original economic balance of the concession. The calculation must take into account the cumulative value of successive modifications.
The proposal also provides for certain circumstances that could justify substantial changes, including the need to carry out additional works, regulatory changes, technological developments, or unforeseen situations affecting the operation of the concession. In these cases, administrations must document the reasons justifying the modification and its economic consequences.
The text also includes obligations relating to oversight of contractual compliance, record-keeping, and the conditions for the return or transfer of assets used during exploitation. Where a concession includes infrastructure or public property, the conditions for handing it over at the end of the contract must be set out clearly and without discrimination.
The legislative proposal must complete its passage through the European Parliament and the Council before it can become applicable law. Until then, the provisions set out in the document represent the European Commission's legislative proposal and not an amendment to the port concessions regime already in force.
