Le concessioni alla luce del diritto europeo sui contratti pubblici

The work has the aim of examining the impact of European law on the institute of concession, especially in the light of the recent law according to UE Directive 2014/UE/23 on the award of concession contracts. To do so, it has been important to focus on the definition of concession itself. This institute has been framed oh the speculative level: from the concept as a measure, to the concept of the institute as a contract. With the passage of the time, however, it had to take note of the contractual qualification that the European law gave to the figure. Once acquired the contractual nature of the European concession, it has been crucial to distinguish it from the tender contract. Also the development has been slow, having initially focused the attention to the tripartite nature of the concession, rather than on remuneration. Only later, it received instead the concept of operational risk as unambiguously distinctive element of the concession. So it was issued the UE Directive on concessions transfused into the new public contract code, d.lgs. n. 50/2016. The third part of the paper is dedicated to the impact of the new law on the institute of concession. The new code has unified the law of works and services concessions, both on the side of reliance and the side of execution. The latter, in particular, has been affected by a complete law which has enhanced the phase of development of the relationship on the subcontracting plan, the ius variandi, and the early termination of “synallagma”. In this context, a specific attention must have the financial plan, true heart of the institute. In the end, we have to focus on at least three points. One aspect is about the utility of the distinction in the code between concessions and the public-private partnership, a category which is not reflected in the European Directive. Secondary, it is necessary to meditate on the fate of the concession contracts below the EU threshold. Finally, the most important point. The European legislator has shaped the competitive procedures for the award of concessions in very flexible terms.