Works Concession in Procurement Law 2026

Definition: A works concession is a contract by which a contracting authority entrusts an undertaking with the performance of construction services and, in consideration, grants the right to exploit the constructed work (operating right), possibly together with payment, with the operating risk transferring substantially to the concessionaire.

Last updated: January 2026 · Legal status: Directive 2014/23/EU (Concessions Directive), BVergG 2018 §§ 177–200, GWB §§ 148–154

---

What is a works concession?

The works concession is a special form of public procurement that differs from the classical works contract in that the contractor receives consideration not as a direct payment from the contracting authority but through the right to exploit the constructed work commercially. The core element of the works concession is the transfer of the operating risk to the concessionaire: the concessionaire must itself bear demand uncertainty and economic risks.

Typical works concessions:

• Toll roads and tunnels: the undertaking builds the infrastructure and is remunerated through toll revenue
• Car parks: construction and operation in return for parking fees
• Stadiums and arenas: construction and operation in return for event revenue
• PPP models (Public Private Partnerships) in the building sector

Distinction from the works contract

The decisive distinguishing feature between a works concession and a works contract is the operating risk. If the contractor bears the substantial demand risk (i.e. it may, in the worst case, fail to generate sufficient revenue), it is a concession. If the contractor is remunerated in full by the contracting authority for its service (regardless of use), it is a works contract.

The CJEU and Directive 2014/23/EU specify that a substantial part of the operating risk must be transferred to the concessionaire. A purely formal transfer of risk without economic substance is insufficient to establish a concession.

Legal basis

Works concessions are subject to a separate regulatory framework: Directive 2014/23/EU (Concessions Directive).

The threshold for concessions is uniformly EUR 5,538,000 (as of 2024). Below this value, national rules apply; however, the EU fundamental freedoms (transparency, equal treatment) must also be observed below thresholds where the project is of cross-border interest.

Award procedure for works concessions

Unlike classical procurement procedures, contracting authorities have more flexibility in designing the procedure for concessions. However, they must:

• Publish a concession notice on TED
• Observe the procurement principles (transparency, equal treatment, non-discrimination)
• Base the award decision on award criteria defined in advance
• Observe a standstill period before contract conclusion

FAQ

Are works concessions subject to the same deadlines as works contracts? No. Concessions law is less formalised than classical procurement law. There are no statutory minimum periods for the preparation of offers, but the contracting authority must allow tenderers sufficient time.

What is the difference between a works concession and a services concession? A works concession centres on the realisation of a work; remuneration takes the form of operating rights in the work. In a services concession, a service is provided; remuneration consists in the right to charge users of the service.

---

Last updated: January 2026 All information without warranty. For legally binding advice, please consult a law firm specialising in procurement law.