TITLE III

RULES ON PUBLIC WORKS CONCESSIONS
CHAPTER III

Rules applicable to contracts awarded by concessionaires which are not contracting authorities

Advertising rules: threshold and exceptions
Article 63
1
The Member States shall take the necessary measures to ensure that public works concessionaires which are not contracting authorities apply the advertising rules defined in Article 64 when awarding works contracts to third parties where the value of such contracts is equal to or greater than EUR 5 000 000.
Advertising shall not, however, be required where a works contract satisfies the conditions listed in Article 31.
The values of contracts shall be calculated in accordance with the rules applicable to public works contracts laid down in Article 9.
2
Groups of undertakings which have been formed to obtain the concession or undertakings related to them shall not be considered third parties.
‘Related undertaking’ shall mean any undertaking over which the concessionaire can exert a dominant influence, whether directly or indirectly, or any undertaking which can exert a dominant influence on the concessionaire or which, as the concessionaire, is subject to the dominant influence of another undertaking as a result of ownership, financial participation or the rules which govern it. A dominant influence on the part of an undertaking is presumed when, directly or indirectly in relation to another undertaking, it:
a
holds a majority of the undertaking's subscribed capital;
b
controls a majority of the votes attached to the shares issued by the undertaking; or
c
can appoint more than half of the undertaking's administrative, management or supervisory body.
The exhaustive list of such undertakings shall be included in the application for the concession. That list shall be brought up to date following any subsequent changes in the relationship between the undertakings.
Substituted by Commission Regulation (EU) No 1251/2011 of 30 November 2011 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the awards of contract (Text with EEA relevance).