Public and Private Law Aspects of Breach of the Concession Contract in Slovenian Law

Abstract

Breach of the concession contract is governed by the provisions from the field of concession relations and by the rules of the law of obligations. However, the rules of the law of obligations apply only mutatis mutandis. A concession contract is an administrative contract that is characterised by the fact that the parties must always pursue a public interest, which generally prevails over other contractual interests. Thus, it may happen that continued fulfilment of the contract is still in the public interest despite the breach. Slovenian law is often not adapted to the special nature of the concession contract. Regulations in the field of concession relations restrict the rescission right of the concessionaire only to certain cases and do not offer it generally for all concession contracts, which may jeopardise the principle of continuity of the performance of the public service. On the other hand, the grantor may rescind the contract, revoke the concession, and in some cases terminate it in accordance with the EU law due to the concessionaire’s breaches. However, the rules often do not establish a clear boundary between these sanctions, which creates legal confusion. The intertwining of public law and private law elements of the concession contract is also typical for the assessment of damages liability. If the damage is the result of (unlawful) public authority actions by the grantor, such liability must be assessed in accordance with the rules on State liability for damages due to unlawful conduct, even if the conduct also constitutes breach of contract. The consequences of breach of public law acts by the concessionaire are not generally regulated in Slovenian law. If such a breach does not also constitute breach of contract, the grantor has the right to compensation only if the sector law so stipulates