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19 June 2007
Concessions are now governed by the new Law on Concessions (9663/2006), which abolished the Law on Concessions and the Participation of the Public Sector in Infrastructure and Public Services (7973/1995), as amended.
Concessions under the previous law were categorized as:
Under the previous law, the concession period was up to 30 years.
Pursuant to the new law, a 'concession' is defined as an agreement between a concessionaire and a public administrative body authorized to sign the agreement, whereby the concessionaire undertakes to:
The concession period is up to 35 years.
Further, pursuant to the new law the following public administrative activities are subject to concession agreements:
In addition, upon proposal by the minister of economy, trade and energy, the Council of Ministers may authorize the granting of concessions in other sectors of the economy and industry. Concessions might be granted on a solicited or non-solicited basis.
Potential concessions may be identified by either governmental bodies (whether central or local) or private legal entities. Where a concession is identified by a governmental body, the granting of the concession is considered to be on a solicited basis.
Upon identification of a concession, the Council of Ministers appoints a contracting authority which, under Article 5 of the new law, is the ministry or local governmental unit responsible for the economical activity in question. Once designated, the contracting authority must prepare a public request for offers and collect all offers in order to commence the selection procedure. At this stage, the offeror must possess at least: (i) professional and technical qualifications, human resources, machinery and other assets necessary for the accomplishment of the concession project, including designation, construction, operation and maintenance (if necessary); and (ii) administration and organization skills, credibility and experience in similar projects.
The law establishes that candidates must be legal entities, whether local or foreign. If the legal entities unite temporarily, the concession application documents must refer to the group as a whole and to each entity.
Pursuant to the new law, any legal entity that claims to have identified a possible concession may submit a request to the contracting authority. In such case the award procedure is considered to have commenced on a non-solicited basis.
The contracting authority may accept a non-solicited request for a concession on the condition that the latter involves no projects for which a selection process has started or has been announced. Once the contracting authority has identified the concession, the selection procedure (which is the same as for solicited concessions) must be carried out. The entity that has identified the concession is invited to participate as offeror; if the concession is accepted, a bonus of 10 points is awarded.
One of the concessionaire's obligations is to establish a new company in accordance with the law. Accordingly, a limited liability company or a joint stock company must be established to implement the concession under the concession agreement.
In addition, the concessionaire must provide the contracting authority with a concession fee established on a case-by-case basis under the concession agreement. Exceptionally, the Council of Ministers has discretion to determine cases in which the concession fee shall be €1.
Pursuant to the new law, any candidate may file a claim for breach of the procedures determined by law or of sub-legal acts of the contracting authority before the Public Procurement Agency. The agency has discretion to suspend concessions except where (i) the claim has no legal grounds, or (ii) suspension would be contrary to public interest or detrimental to the contracting authority or other candidates.
After examining the claim, the agency may invalidate the decision or act of the contracting authority either wholly or partially, and/or instruct the latter to remedy any breaches. The decision of the agency might be challenged before the Tirana District Court. A judicial appeal does not stay the concession procedure.
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