The Concession Contracts (Scotland) Regulations 2016

Ineffectiveness orders

55.—(1) Without prejudice to all rights and obligations in respect of the period leading up to the date of the order, an ineffectiveness order made in relation to a concession contract renders unenforceable all rights and obligations directly arising from the concession contract in respect of the period commencing on the date of the order.

(2) Subject to any order made under regulation 56(1)(b) (powers of the court), obligations rendered unenforceable by an ineffectiveness order made in relation to a concession contract must not be performed by the parties to the concession contract.

(3) Subject to paragraph (4) and regulation 57 (general interest grounds for not making a declaration of ineffectiveness), the court must make an ineffectiveness order if—

(a) the first ground for ineffectiveness referred to in paragraph (5) applies; or

(b) the second ground for ineffectiveness referred to in paragraph (7) applies.

(4) In proceedings under this Part to which regulation 52(4)(b)(powers and duties of the court) applies, the court does not have power to make an ineffectiveness order if the proceedings would be incompetent if the regulation 52(4)(a) applied to the proceedings.

First ground for ineffectiveness

(5) The first ground for ineffectiveness applies if the contracting entity has entered into a concession contract without prior publication of a concession notice in the Official Journal in circumstances where the concession contract was not exempt from the requirement for prior publication of a concession notice.

(6) The first ground for ineffectiveness does not apply if—

(a) the contracting entity sent to the Official Journal a notice in the form of the voluntary ex ante transparency notice in Annex XII to Commission Implementing Regulation (EU) No 2015/1986(1), expressing its intention to enter into the concession contract and containing—

(i) the name and contact details of the contracting entity;

(ii) a description of the object of the concession contract;

(iii) a justification of the decision of the contracting entity to award the concession contract without prior publication of a concession notice;

(iv) the name and contact details of the economic operator to be awarded the concession contract; and

(v) any other information which the contracting entity considered useful; and

(b) the contracting entity allowed a period of at least 10 days to elapse between the date of publication in the Official Journal of the notice referred to in sub-paragraph (a) and the date on which the contracting entity entered into the concession contract.

Second ground for ineffectiveness

(7) The second ground for ineffectiveness applies if all of the following apply—

(a) the contracting entity has breached regulation 49(1) (notice of decision to award a concession contract), 50(1) (standstill period) or 53 (automatic suspension of authority power to proceed with concession contract award);

(b) the contracting entity’s breach referred to in sub-paragraph (a) prevented the economic operator from bringing proceedings or obtaining a remedy before the concession contract was entered into;

(c) in awarding the concession contract there has been another breach of the duty owed to the economic operator under these Regulations, other than a breach of regulations 49(1) (notice of decision to award a concession contract), 51(1) (standstill period) or this Part; and

(d) the contracting entity’s breach referred to in sub-paragraph (c) has affected the chances of the economic operator bringing proceedings under this Part to obtain the concession contract.

(1)

OJ L 222, 12.11.2015 p.1.