Legal Dilemmas in the Field of Granting Concessions in Slovenian Law and Some Solutions in Comparative Law

  • Katja Štemberger Faculty of Law, University of Ljubljana
Keywords: concession, granting of concessions, Directive 2014/23/EU, Certain Concession Contract Act, legal confusion, concession, granting of concessions, Directive 2014/23/EU, Certain Concessions Act, legal dilemmas


In Slovenian law, the granting of concessions is governed by a number of (general and special) laws, which are supplemented by the Public-Private Partnership Act (PPPA) as a systemic law for the granting of concession to public-private partnerships regardless of the value of the concession, as well as the Act on Certain Concession Contracts (CCCA), which is the basic regulation for the award of construction concession and service concession contracts falling within the scope of the Directive 2014/23/EU. The CCCA is primarily used in relation to other regulations. Regardless of special law provisions, the provisions of the CCCA should be applied in the procedure of granting concessions that simultaneously meet the criteria for concession contracts from the scope of the Directive 2014/23/EU, and special law provisions should be applied only if they do not contradict the CCCA (reverse rule lex specialis). The complexity of the procedure for granting concessions in Slovenian law is thus reflected in the need to combine the use of different regulations, which frequently regulate the same issues in completely different ways, introducing confusion into the legal order.
As an example, the author highlights differences in the legal nature of the act on concessionaire selection and, as a result, legal protection against decisions in concessionaire selection procedures, and discusses some specifics that apply to concessions for social and other special services. In addition to the provisions
relating to the concession award procedure, there are other inconsistencies between the CCCA and sectoral regulations concerning the implementation of the concession contract. In view of all the shortcomings, the author implies that the Slovenian legislator should either adjust the sectoral regulations to the CCCA regulations or adopt a single procedural law that would apply to all concessions, with specific (stricter) rules applicable to concessions above the relevant value threshold.