1 / 15

Martin Oder, LL.M.

Legislative Options for Regulating Concessions and PPPs Ministry of Economy, Trade and Energy - OECD/Sigma Regional Workshop on Concessions / Public-Private Partnerships Tirana, 11-12 December 2007. Martin Oder, LL.M. Need for regulating PPP and Concessions? (I). EU

clorraine
Download Presentation

Martin Oder, LL.M.

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Legislative Options for Regulating Concessions and PPPs Ministry of Economy, Trade and Energy - OECD/SigmaRegional Workshop on Concessions / Public-Private Partnerships Tirana, 11-12 December 2007 Martin Oder, LL.M.

  2. Need for regulating PPP and Concessions? (I) • EU • Internal Market (i.e. freedom of establishment, freedom to provide services) throughout the Member States • no illegal state aid • effective competition and legal clarity for the award of public contracts and concessions (EC public procurement Directives) • selection of private partner in accordance with principles of equality, transparency, proportionality and mutual recognition • Member States • obligation to comply with EC-law (in particular EC procurement Directives) • creation of functioning framework for PPP projects • compliance with Maastricht criteria / budgetary constraints • improvement of services in the general interest, infrastructure 2

  3. Need for regulating PPP and Concessions ? (II) • Public sector • procurement of services / works (eg infrastructure projects) • need for private funding due to budget constraints • wish to benefit from know-how of private sector • better value for money (efficiency) • Private sector • provision of services / works • improving working / operating methods (“competitive edge”) • appropriate RoI • clear legal and institutional framework 3

  4. EU Legislation on PPP and Concessions • No specific provisions on procurement, PPPs and/or concessions in the EC Treaty => however, general principles of the Treaty are applicable • Public Procurement Directives • Dir 2004/18/EG („Classic Dir“) • Dir 2004/17/EC (“Utilities Dir”) • ECJ case law • preliminary rulings and infringement proceedings 4

  5. Commission Guidance(„Soft Law“) • Green Paper on PPP and Community Law on Public Contracts and Concessions (COM (2004) 327 final) • Communication on PPP and Community Law on Public Procurement and Concessions (COM (2005) 569 final) • Explanatory note on Competitive Dialogue procedure • Interpretative Communication on Concessions under Community Law (OJ 2000/C 121/2) 5

  6. Procurement of PPP Contracts • PPP contract • no legal definition • no clear legal concept • „umbrella-term“ for any contractual cooperation between public and private sector • from public procurement point of view: public (works or services) contract or (works or services) concession or excluded contract 6

  7. Public Works Concessions • Works concession • is public works contract but • remuneration consists in the concessionaire’s right to exploit the works (together with payment form authority) • requires transfer of (essential) risks connected with the exploitation of the works • is excluded from scope of Utilities Dir (2004/17/EC) but fundamental EC Treaty principles apply • subject to specific provisions in Classic Dir (2004/18/EC) 7

  8. Public Service Concessions • Services concession • is public services contract but • remuneration consists in the right to exploit the services (together with payment from authority) • requires transfer of (essential) risks connected with the operation of services • is excluded from scope of both the Classic Dir (2004/18/EC) and the Utilities Dir (2004/17/EC) but fundamental EC Treaty principles apply 8

  9. Specific Procedurefor PPP: Competitive Dialogue • New, additional procedure in Classic Dir 2004/18/EC • For the award of “particularly complex contracts”, i.e. where the contracting authority is “not objectively able” to specify - the technical means … capable of satisfying its needs and/or - the legal and/or financial make up of a project 9

  10. Legislative Options for Member States (I) • EC Treaty obliges Member States to comply with primary and secondary EC law • EC Treaty provisions and EC regulations: directly applicable in Member States (eg contract thresholds), no need for implementation into national law • Obligation to implement EC procurement Dir into domestic law (administrative practices are not appropriate (ECJ, Comm/A, C-212/02)) • ECJ (Comm/G, C-433/93): incorporation in specific legislation not necessarily required, general legal context may be adequate for the purpose of implementation, provided that • it guarantees the full application of the Directive in a sufficiently clear and precise manner • Individuals can ascertain the rights given to them by Directive to the full extent and can rely on them before national courts • Specific public procurement legislation on national level highly advisable 10

  11. Legislative Options for Member States (II) • (Makedoniko Metro, C-57/01): Member States are free to provide rules for situations not covered by the procurement Directives provided that they comply with general EC Treaty principles • No need for specific PPP legislation on national level • but Member States are free to enact specific PPP legislation provided that this legislation complies with EC law (especially with EC Treaty principles and public procurement rules) • Member States can opt to implement new procedure “competitive dialogue” • No need for specific legislation on the award of services concessions (and works concessions in Utilities Sector) on national level • Member States are free to provide for specific rules as long as they do not collide with fundamental EC Treaty principles • clear and precise provisions on scope of legislation, definition of and obligations on contracting authorities and contracts covered 11

  12. Legislative Options for Member States (III) • If Member State chooses to enact specific PPP and/or concessions law, then it should help the implementation of functioning PPP practice • clear legal and institutional framework • removal of barriers for PPP projects (e.g. tax) • no “overregulation”: danger to development of functioning PPP practice • bankable model for international investors and financial institutions • sector specific regulations might be helpful / necessary 12

  13. Examples of NationalPPP-Legislation (I) • Member States with specific PPP legislation, e.g. • France Partnership Contract (L’Ordonance n°2004-559 of 17.6.2004), concessions contracts (sapin law) • PolandAct of 17.6.2005 on Public Private Partnership • GermanyPPP-Acceleration Act of 2005 (e.g. abolishment of real estate transfer tax) • RomaniaPPP law (GEO No. 34/2006) 13

  14. Examples of National PPP-legislation (II) • GreecePPP Law (3389/2005 of September 2005) • ItalyDBF schema (Codice dei Contratti Pubblici di Lavori, Servizi e Forniture, 2006) • PortugalPPP contracts (Decree-law 86/2003) • Member States without specific PPP legislation • Austria, Ireland, UK, Hungary 14

  15. Thank you for your attention! Martin Oder HASLINGER / NAGELE & PARTNERS Am Hof 13, A-1010 Vienna Phone +43/1/718 66 80-616 Fax +43/1/718 66 80-30 email: office.wien@haslinger-nagele.com

More Related