General overview of the book

Concessions continue to be a topic of interest to both daily practice and legal scholarship. The book Concessions and similar instruments in the EU and beyond (Larcier 2025) chose to highlight specific themes to contribute to bridging the current research gap. It deals with situations in which the government has a de facto or de jure monopoly on (the allocation of) certain rights and where the private party acquiring these rights must make investments to subsequently be able to exploit these rights. The risk of recouping the costs incurred for these investments lies with the private party. Examples include mining, operating casinos, and operating parking garages. Although concessions are often used for these matters, this is by no means always the case. Indeed, sometimes similar instruments such as licenses or permits are used. The book anticipates this by including these instruments in its scope.

Moreover, the term concession is not (always) clearly defined. One of the questions dealt with in this book is whether the choice of instrument has consequences for the regulation of the procedure for the allocation of the rights concerned. Especially when there is scarcity, certain principles (such as transparency) seem to be dominant, and the question arises whether there is convergence across the concessions and related procedures used in situations where scare rights are awarded.

Research approach and research questions

As pointed out by Jean-Bernard Auby in his foreword, one of the difficulties of comparative law, and one of the charms of its practice, is the asymmetry of concepts: the fact that what is apparently the same notion, expressed in the same way where appropriate, takes on a different meaning in different legal systems. This study demonstrates this interesting characteristic, placing under the umbrella of the concession diverse mechanisms which are not conceived in the same way depending on the legal system in which they are observed.

This comparative law study focuses on concessions and similar instruments in EU countries (Belgium, France, Germany, Italy, the Netherlands, and Spain), as well as countries outside the EU (Argentina, Egypt, United States of America, and Switzerland). In addition to concessions, the study focuses, as explained, on similar instruments. The study thus has a different and broader scope than studies that solely focus on concessions and the implementation of the EU directive 2014/23 on the award of concession contracts.

To facilitate comparison, four concrete targets (cases) for analysis and discussion have been identified: the exploitation of arcade halls and casinos, the exploitation of mining resources, the exploitation of advertising on street furniture and the exploitation of municipal car parks.

This study contains national reports discussing the above-mentioned four cases. This is done in an in-depth manner, setting the cases against a general overview of the legal system of the country concerned. Each national report ends with a general conclusion that transcends the separate cases that are studied. In the national reports for each case three questions are addressed: 1) what legal instrument is used to allocate the right to exploit (a concession or another (similar) instrument), 2) what legal procedure is used to allocate the right (is competitive tendering required or not), 3) and how are the private party and the investments made by this party protected?

The main conclusions of this book are presented in two chapters with a transversal analysis. The most important general findings and questions for further research are outlined below.

Main findings

The chapters with a transversal analysis are written by Yseult Marique and Sarah Schoenmaekers. They focus on the use of concessions and other similar legal instruments and the procedures to allocate the right to exploit. We give a brief overview of their most important general findings.

The case studies show that in the EU Member States the term ‘concession’ is used both more broadly and more narrowly than in the Concessions Directive. Sometimes the term ‘concession’ refers to another legal mechanism in a Member State, namely a license or an authorization. Sometimes the term ‘license’ or ‘authorization’ is used in a Member State, while it actually concerns a concession. This observation also applies, more generally, to the non-EU countries studied.

In line with the above, whether a concession or a similar legal instrument is used and how it is regulated varies from country to country and from sector to sector. Even within countries there are differences between the sectors studied. In none of the legal systems studied do the objects of the four case studies depend on a legal regime that is organized in a coherent and uniform manner. Consequently, the four types of operations are the subject of extremely fragmented legal analyses, despite the economic or material characteristics that seem to unite them a priori. Moreover, the sectors in which concessions are used fall under the jurisdiction of several levels of government in some countries, particularly those with a (quasi-)federal form. This reinforces fragmentation, or at least the risk of fragmentation.

The four cases studied in the book do have something in common: the government is in a position to allocate limited rights (the number of rights to allocate is legally limited, physically limited or limited by economic strategy).The way a limited right is awarded to a private party varies not only depending on the legal instrument used, but also on the degree of competition that must be organized in the different states by the government when using that instrument. The selection of a private party can take place in various ways, such as a full public procurement procedure, a more flexible and less strict award procedure, on a basis of ‘first-come, first-served’ and a direct award. Of course, this may include differences in terms of the protection of the private party.

Food for thought and further research

The fact that the national reports and the transversal chapters give an exhaustive overview and expose important bottlenecks, does not take away that there is still a lot of work to be done. This was pinpointed by both Yseult Marique and Sarah Schoenmaekers.

Yseult Marique observes that the label ‘concession’ conceals multiple operations with a very subtle and differentiated legal regime. To clearly identify the risks for the operator, one therefore needs to understand: the laws and regulations as a whole; the concrete economic, social and geographical circumstances of the performance of the concession; and the clauses of the specifications, which are often covered by trade secrecy. Although French law – the ‘mother’ of the concession model – has traditionally sought inspiration from the rules of civil law to develop the legal system of the concession, more than one national report expresses doubts about the contractual nature of the legal instrument that is the concession. Would it not be interesting to go back through the twists and turns of the evolution of concessions to identify all these intersections where its legal nature has gradually become more sophisticated and to test them in the light of the contemporary use and needs of the instrument and its diversity?

It is, as Sarah Schoenmaekers points out, not easy to compare concessions and similar instruments when it comes to procedures to allocate the right to exploit. Although (competitive) award procedures are widespread, ‘first come, first served’ agreements and preferential treatment are still prevalent in certain sectors. Further research is needed to critically analyze if this complies with national, European and international law. This exercise is not only relevant for private parties active on economic markets, but also for contracting authorities or government agencies that must abide to the rule of law.

Concessions can be difficult to identify in a generalized manner and the same could be said of the procedures (and rules) to allocate the right to exploit an activity. It is easy for all concerned – from private party to government – to be at a loss at some degree. To remedy this, several routes for finding solutions are possible. For instance, the development of a United Nations Commission on International Trade Law (UNCITRAL) model law on concessions could be part of the solution, as Yseult Marique suggests. The United Nations Economic Commission for Europe’s ‘standard on Concessions and PPPs’ could act as an inspiration. Or, as is suggested on the basis of the research done in this book by the network Public Contracts in Legal Globalisation (PCLG) in response to the European Commission call for evidence to evaluate the EU’s public procurement directives, to refine the EU Concessions Directive.

All in all, this book gives the reader important insights into the situation surrounding ‘concessions’, provides a basis for thinking about solutions and raises important questions for future research. A must read for anyone dealing with concessions in academia or practice.

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Posted by Pim Huisman, Etienne Poltier and Steven Van Garsse

Pim Huisman, Full Professor of Administrative Law, University of Curaçao, Associate Professor of Administrative Law, Vrije Universiteit Amsterdam

Etienne Poltier, Emeritus Professor, University of Lausanne, Faculty of Law

Steven Van Garsse, Full Professor of Administrative Law, University of Hasselt, lawyer at the Brussels bar