Simona GHERGHINA, Obscurity by Clarification: Construction Risk as Part of Operational Risk in Concession Contracts

Abstract: In defining availability risk as an element of operational risk, key to identifying a concession contract, the Romanian legislator adds a specific reference to construction risk to the general definition in the Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts. In the absence of any reference to construction risk in the Concessions Directive, the EU legislative effort aimed at overcoming the lack of legal certainty in relation to the definition of concession is thus affected by the uncertainty induced by this type of national “clarification” of a EU law concept. This article examines the implications of including construction risk in the assessment of operational risk as well as the limitations deriving from the Concessions Directive and the CJEU relevant case law.

Key words: concessions, operating risk, supply risk, availability risk, construction risk, public contracts

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