Download Martin Oder, LL.M. Legislative Options for Regulating - sigma

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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.
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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
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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
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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
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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)
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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
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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)
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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
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Specific Procedure
for 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
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Legislative Options for Member
States (I)

EC Treaty obliges Member States to comply with primary and
secondary EC law
-
-

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
-

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))
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
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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
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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
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Examples of National
PPP-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)
-
Poland
Act of 17.6.2005 on Public Private Partnership
-
Germany
PPP-Acceleration Act of 2005 (e.g. abolishment of real estate
transfer tax)
-
Romania
PPP law (GEO No. 34/2006)
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Examples of National
PPP-legislation (II)
•
-
Greece
PPP Law (3389/2005 of September 2005)
-
Italy
DBF schema (Codice dei Contratti Pubblici di Lavori, Servizi e
Forniture, 2006)
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Portugal
PPP contracts (Decree-law 86/2003)
Member States without specific PPP legislation
-
Austria, Ireland, UK, Hungary
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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: [email protected]
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