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A key issue for the successful application of Directive 2014/23 lies in the proper interpretation of its new definition of concessions, which is marked by legal complexity and technical difficulty. Irrespective of how pioneering the newly introduced regulatory framework is, it has been developed on a dysfunctional conceptual foundation which constitutes a source of further legal uncertainty regarding the already complicated distinction between public contracts and concession contracts. These interpretational deficiencies cannot effectively “cut the Gordian knot” of legal uncertainty that typifies concessions, ultimately having a detrimental effect on attracting long-desired private-sector investments destined for European public infrastructure. This critical analysis mainly focuses on the theoretical approach chosen by the EU legislator in order to describe the new concession definition. In light of this approach, it is to be expected that Member States will implement the new concession rules in different ways on the basis of divergent interpretations of the relevant definition.
