S.L. 601.9 Art. 22Concessions between entities within the public sector.

(1) A concession awarded by a contracting authority or a contracting entity as referred to in regulation 2(2)(a) to a legal person governed by private or public law shall fall outside the scope of these regulations where all of the following conditions are fulfilled:

(a) the contracting authority or contracting entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;

(b) more than eighty per cent of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or contracting entity or by other legal persons controlled by that contracting authority or contracting entity; and

(c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

(2) A contracting authority or contracting entity as referred to in regulation 2(2)(a) shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of sub-regulation(1)(a), where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. That control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority or contracting entity.

(3) Sub-regulations (1) and (2) also apply where a controlled legal person which is a contracting authority or contracting entity as referred to regulation 2(2)(a) awards a concession to its controlling contracting authority or contracting entity, or to another legal person controlled by the same contracting authority or contracting entity, provided that there is no direct private capital participation in the legal person being awarded the concession with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.