Title: The Current Situation Regarding PPPs and Concessions in the EU Olivier Moreau European Commission, D
1The Current Situation Regarding PPPs and
Concessions in the EUOlivier MoreauEuropean
Commission, DG MARKT.C1
Concessions and Public-Private
Partnerships Ankara, 10-11 March 2008
- http//europa.eu.int/comm/internal_market/publicpr
ocurement
2Importance of PPPs and concessions
- Cooperation of public authorities and the private
sector leads to - - more private financing of projects
- - less involvement of public authorities
- - make use of the experience and methods of the
private sector - - more efficiency
3Importance of PPPs and concessions
- Such cooperations are used especially in
high-value infrastructure or environmental
projects - The Commissions interest in regulating these
areas to ensure real competition - Alignment to the acquis public contracts and
concessions should have priority
4The current legal situation
- EU legislation regulating concessions and PPPs
- - The EC Treaty (general principles)
- Procurement directives 2004/17 and 2004/18 (works
concession and definition of service concession) - The case law of the European Court of Justice
(Teleaustria, Coname, Stadt Halle, Teckal,
Lottomatica, etc.) - Commission Interpretative Communications (2006/C
179/02 2000/C 121/02 2005/0569)
5ConcessionsGeneral questions
- NOT concessions in the sense of EU public
procurement rules - when a public authority authorises the exercice
of an economic activity (e.g. taxi concessions) - acts concerning non-economic activities (e.g.
obligatory schooling)
6ConcessionsGeneral questions
- Main characteristics of concessions
- Contracting authority entrusts to a third party
- Total or partial management of services (which
constitute economic activities) - For which that authority would normally be
responsible - For which the third party assumes the
economic/operational/financial risk - Leaves the public authority functions/powers of
the grantor untouched
7ConcessionsGeneral questions
- Main characteristics of concessions (which
separate them from public contracts) - - the right of exploitation
- - the transfer of the responsabilities of the
operation - - the transfer of risks inherent in the
exploitation (who bears the costs)
8ConcessionsThe procurement directives
- Works concessions
- (Title III of 2004/18 excluded from 2004/17)
- Definition
- Scope and exclusions
- Advertising and time limits
- Subcontracting and additional works
- Rules on the award of contracts by
concessionaires
9ConcessionsThe procurement directives
- Works concessions - Rules on the award of
contracts by concessionaires - Concessionaires which are contracting
authorities - - provisions for public work contracts
- Concessionaires which are NOT contracting
authorities - - advertising
- - time limits
- principles of the Treaty!
10ConcessionsThe procurement directives
- Service concessions
- Only its definition in the directives, otherwise
its excluded from their scope - Only principles of the Treaty apply
11ConcessionsService concessions
- ECJ in TELAUSTRIA judgment (C-324/98)
- The fundamental rules of the Treaty, in
particular the principle of non discrimination
apply to service concessions. - Advertising must be sufficient to open the
services market up to competition. - The fundamental rules of the Treaty include
- Equality of treatment
- Transparency
- Proportionality
- Mutual Recognition
12Public Private Partnership (PPP)
- Not a legal term in the EU sense
- Describes only a specific situation when public
authorities and private entities cooperate in
order to meet a general interest - In legal terms it can be a public contract or a
concession, depending on the case - Its specific form is the Institutionalised PPP
13Public Private Partnership (PPP)
- Public contract or concession?
- - the right of exploitation
- - the transfer of the responsabilities of the
operation - the transfer of risks inherent in the
exploitation - the sharing of costs
14Public Private Partnership (PPP)
- - PPPs qualifying as public works contracts or as
priority service contracts application of the
detailed provisions of the Procurement
Directives. - - PPPs qualifying as public works concessions or
non-priority service contracts application of
few provisions of the Procurement Directives. - - PPPs qualifying as service concessions EC
Treaty principles only.
15PPPs and concessionsCurrent issues of policy
making and new legislation
- Communication on PPPs and Community Law on public
procurement and concessions (COM2005(569)) - Draws political conclusions from PPP Green Paper
consultation and - sets out the key initiatives at EC level in this
area.
16PPPs and concessionsCurrent issues of policy
making and new legislation
- Areas where Community action not required at this
stage - No need for horizontal PPP legislation at EC
level - No immediate need for initiatives on private
initiative PPPs, subcontracting or the
contractual framework
17PPPs and concessionsCurrent issues of policy
making and new legislation
- Key areas requiring further consideration at EC
level - Concessions
- Institutionalised PPPs
18PPPs and concessionsCurrent issues of policy
making and new legislation
- Concessions
- Demand for a stable, consistent legal
environment for the award of concessions legal
certainty - EU action needed to avoid patchwork of national
rules
19PPPs and concessionsCurrent issues of policy
making and new legislation
- New directive on concessions?
- It is in the Commissions working programme
- Clear interest from the stakeholders
- The Commission services are working on it and
have discussions on it with Member States - It will be a part of a legislative package on
services of general interests - Waiting for the result of the impact assessment
- Due to the political sensitivity of it clear
political decisions are needed from the
Commissioner and the College
20PPPs and concessionsCurrent issues of policy
making and new legislation
-
- Commission Interpretative Communication
C(2007)6661on the application of Community law on
Public Procurement and Concessions to
Institutionalised Public-Private Partnerships
(IPPP) - - Addressing the creation and operation of
IPPPs/ in-house - - Political decision is necessary from the
Commissioner and the College to go further
through a legislative initiative on concessions - - Key issues are
- Definition of concession
- Scope of a possible initiative on concessions
- Qualification of mixed concessions
- Thresholds and method of calculation
- Procedure to award concessions
- Selection and award criteria
- Duration of concessions
- Amendments to the concession during its lifetime
- Remedies regarding infringements to the EU rules