20.5.2005   

EN

Official Journal of the European Union

C 120/103

1.1

On 30 April 2004 the Commission published a Green Paper on public/private partnerships (PPP). Its aim is to launch a debate on the application of Community law on concessions and PPP.

1.2

In its own-initiative opinion of October 2000 (1), the EESC made recommendations that are still relevant today. The PPP phenomenon is growing and remains a strategic question for an enlarged EU after the adoption of the new directives of 30 April last (2).

1.3

In the meantime experience has also been gained with PPP projects in a number of countries. The results have been mixed. It would therefore be advisable to assess such experience systematically in terms of a variety of criteria such as costs, access to services, service quality, impact on employment, etc. Points to examine in particular are whether and how PPPs can help maintain Europe's competitiveness vis-à-vis the rest of the world and what their advantages and disadvantages are in relation to conventional ways of providing services.

2.1

All European countries have used or are currently using the system of PPPs and concessions. But so far the Commission has not been able to draw up an inventory. The EIB has incomplete statistics on a hundred or so projects. Let us not forget that the ‘first Europe’ of Roman times two thousand years ago was already using a system of concessions. During the nineteenth century the European railway network was built using concession contracts. These were very widely used not only on the railways but also for municipal public services such as water, gas, electricity, rubbish disposal and telephones.

2.2

Overall contracts have long been used throughout the world to cover the funding, design, construction and management over time not only of motorways and car parks but also of such projects as water-supply networks, museums, airports, trams, underground railways, urban redevelopment and the modernisation of schools and hospitals.

2.3.1.1

The framework law of 1994 (the Merloni Act) defines construction and management concessions. In this type of concession the concession holder carries out a project using his own resources, recovering the capital invested through the economic exploitation of the project when completed (Article 19(2) of Law 109/94) (3).

The aim of the infrastructure recovery programme is to carry out 220 projects considered to be of strategic importance:

The law has created specially adapted legal frameworks: the general contractor, the concession holder, farming-out and the promoter.

To avoid delivery delays and make construction more efficient, a new law of 2001 has created the ‘general contractor’. He delivers the turnkey project and is responsible for maintenance. He is also responsible for the advance funding of the project.

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1 163 projects submitted in three and a half years (January 2000-June 2003);

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660 from promoters (concessions resulting from private-sector initiatives, including 302 in 2003!);

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503 from concessions resulting from public-sector initiatives.

2.3.2.1

In Spain, Law 13/2003 of 23 May regulates contracts for public works concessions. This Law has amended the Law on State Contracts, a consolidated text adopted by Royal Decree-Law 2/2000 of 16 June, giving a new title to the regulation of the different types of administrative contracts — The public works concession contract — which provides the legal basis for this contract, which is now commonplace, and focuses on its unusual features and on upholding Spanish legal traditions.

2.3.2.2

The new definition of the contract covers four fundamental issues that characterise this type of contract: ‘public works’, ‘risk to the concession holder’, ‘economic balance in the concession’ and ‘diversification of financing’.

2.3.3.1

In 1993-1994 the government launched a wide-ranging policy of farming out public services and public works known as the ‘Private Finance Initiative’. This enabled private companies to be given responsibility for public works projects, including: ‘design, finance, construction, management and maintenance’. Since its introduction the PFI has been used for:

2.3.3.2

The British Treasury has used two principles to govern use of the PFI: ‘the private sector must really take on the risk’ and ‘the public sector must obtain services at the best price by applying the best-value-for-money principle’. The aim of this is to optimise the costs of using the facilities that have been built, because since the manufacturer himself is responsible for exploiting the facilities, it is in his interest to design and build a work of quality that will be cheaper to run and have a longer lifetime.

2.3.3.3

Current contracts cover all areas: water, sanitation, public transport, the army, hospitals, schools, public buildings, roads and motorways …

2.3.3.4

Due to the high number of PPP projects in the United Kingdom, a considerable amount of experience has been obtained there, which has given rise to very mixed results. A systematic analysis and assessment of this experience should be carried out and used in further developments.

2.3.4.1

The right to draw up concession contracts with payment by the user was organised by the so-called ‘Sapin Law’ of 29 January 1993, and use of these contracts is widespread:

2.3.4.2

PPP contracts with public sector payment are spreading fast in France.

2.3.4.2.1

Since the Law of 5 January 1988, France has had long-term contracts for public spending: administrative long leases (known as Baux Emphytéotiques Administratifs or BEAs). These contracts are used for public buildings, especially schools, as a variant of the leasing used by the French state (4). The state has also developed the practice of lease options in the buildings and infrastructure sector (laws of 29 August 2002 for ‘the police’ and the beginning of 2003 for ‘the army’).

2.3.4.2.2

Finally, a law of 2 July 2003 has made provision for the adoption of orders for long-term contracts including ‘design, construction, financing and management using public funds’. A first order for the hospital sector was published in September 2003, and another has been adopted by the French state and local authorities. This is the ordonnance sur les contrats de partenariat du 17 juin 2004  (5).

2.3.5.1

As in the other Member States, Germany has detailed legal provisions governing public procurement (works contracts) in which public and private undertakings and PPPs can take part on a non-discriminatory basis.

2.3.5.2

A basic distinction must be made between that and the procedure for securing services of general interest. German local authorities often opt for public-private partnerships to provide such services of general economic interest (SGEI) in fields such as supply and disposal, i.e. energy provision, water/waste water and waste removal. That is done using all manner of contracts. In addition to widespread service concessions, public contracts are also found in fields such as electricity supply, and institutionalised PPPs are also in place in local authorities. These PPPs help safeguard regional jobs and the regional economy.

2.3.5.3

Such PPPs are underpinned by local authorities' constitutionally guaranteed powers to decide for themselves the nature of concession-based SGEI provision in their respective areas and how that should be organised. They can choose to set up their own companies, to conduct PPPs with appropriate partners or to award the SGEIs to private operators. PPPs of this kind are not subject to procurement law.

2.4.1

The system comes from the tradition of concessions in Europe. It is growing fast in Europe and it raises the question of whether or not it should have a harmonised framework or be covered by European law.

2.4.2

France and Spain are adopting it after Italy, where the law in this area is very meticulous. In Italy the authority organises a call for tenders referring to the preliminary draft of the promoter, possibly modified by itself, and to its financial plan (proposed duration, price required, etc.).

2.4.3

It awards the concession after a negotiated procedure either to the promoter or to one of the two best offers submitted during the call for tenders. The promoter and bidders have to provide a guarantee of 2.5 % of the total value of the investment.

2.4.4

If the authority does not keep the promoter, he receives the amount of the guarantee from the successful bidder as compensation for his expenditure including intellectual property. If the promoter is awarded the contract, his guarantee of 2.5 % is paid to the other two bidders (60 % to the best one and 40 % to the second best).

2.4.5

In the same way as contracts may be reserved for organisations where most of the workers are handicapped persons, as in Article 19 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of the procedures for the award of public works contracts, public supply contracts and public service contracts, the EESC thinks that certain social criteria should mitigate in favour of the promoter, or of one of the contractors, when setting up this type of public-private partnership.

2.5.1.1

A concession is defined in Articles 24 and 25 of the Law of 24 December 1993 and in Articles 123 et seq. of the Royal Decree of 8 January 1996 (6). In addition to the execution and possible design of work, these articles provide for exploitation of the work by the concession holder. However, the promotion contract in Belgian law does not seem to be very common.

2.5.1.2

The promotion contract (7) covers the funding, execution and, sometimes, the design of a work for which the contracting authority will be the user in return for the payment of rents (8).

2.5.2.1

To improve its road network this country has set up the SCUT contract, a delegation scheme enabling a private builder to receive a public sector licence fee. The SCUT is modelled on the ‘shadow toll’ system set up on British roads. Calls for tenders relating to these SCUT contracts were made in 1997. They seem less used today.

2.5.3.1

There is no specific law governing PPP projects, although the rules governing financial commitments by the state described in Decision No. 2098/2003 (V29).

2.5.3.2

In 1997, the country took the initiative of launching a programme in partnership with the private sector concerning the development of industrial parks, the number of which had reached 165 at the beginning of 2004.

3.1

European law has not been able to give realistic and useful definitions of PPPs and concessions. The concepts of public works and public service PPPs and concessions in European law are either non-existent or flawed. Criticism of the current concept covers:

3.1.1.1

The question of concessions is rooted in Community law on the one hand, in the principles and rules of the Treaty and, on the other hand, in the directives which implement these principles.

3.1.1.2

The directives drawn up by the EU aim to ensure transparency of competition in all areas relating to public contracts and their scope is sometimes confused when complex concession or PPP contracts are involved.

3.1.1.3

Only Directive 93/37 (9) coordinating the procedures for awarding public works contracts defined public works concession contracts in its Article l(d). Unfortunately, it did so by referring to ordinary public works contracts (10). Directive 92/50  (11) on public service contracts did not include any definition of a concession. Finally, Directive 93/38  (12) dealt with neither the definition nor the awarding of concessions, and simply regulated the awarding of all contracts through concession-holders in so-called ‘special’ sectors, thus replacing other directives. The EESC regrets such a laconic and unrealistic approach, which has unfortunately been retained in Directives 2004/17 and 2004/18 (13).

3.1.1.4

The Commission, aware of the increasing use of PPP, published an interpretative Commission communication on concessions under Community public contracts law in April 2000 (14). This communication aimed to remove the fundamental legal ambiguity connected with the absence of a correct definition of concessions and PPP in the directives on public contracts. It should be remembered that the current treatment of concessions and PPP under national laws varies enormously.

3.1.1.5

The EESC considers that there is a lack of definitions that clearly lay down the content and scope of concessions and PPP or delegation contracts. Concessions and delegation generally cannot be summed up by one feature: risk or payment, as considered by Directive 93/37 and then the interpretative communication; it is defined by a whole series of factors.

3.1.1.6.1

The contract, or unilateral act by which a public authority confers specific rights to an outside organisation to ‘design, construct, finance, maintain and manage’ an infrastructure or service for a long and pre-determined period:

3.1.1.6.2

From these definitions, we need to focus on two criteria connected with these types of contract:

3.1.1.6.3

The EESC feels that there is no reason to do as the interpretative communication of April 2000 does and just consider that the (concession) contract boils down to simply assuming the exploitation risk; this would be too partial and restrictive a view of this type of contract.

3.1.2.1

Following the Green Paper published by the European Commission in November 1996 (15), the EESC adopted an opinion on 28 May 1997 (16), in which it asked the Commission to review its approach to concessions with a view to making them more autonomous with respect to the definition of a public works contract: ‘The question of concessions should be examined in depth, given that their award must be transparent and subject to objective criteria. There are fundamental differences between a concession and a contract: object, duration, terms for financing, management methods and the extent of liability. To encourage the spread of such contracts the EU Commission could study what form of legal tool should be used for their implementation.’  (17)

3.1.2.2

The EESC thinks that if one is to consider the nature of contracts and their classification, one needs to recognise what job they are intended to do.

3.1.2.3

A concession or PPP contract cannot be summed up as a transfer of exploitation risk, without any mention of duration, when what it involves, above all, is a transfer of the design, construction, financing and management-maintenance of a work or service to the candidate selected.

3.1.3

As regards the promoters' contracts mentioned earlier, several countries have set up a specific branch of law recognising the possibility of private sector operators proposing a project to the responsible public authorities. This practice, which is now quite normal in Italy, should be made available in other Member States which currently do not have similar procedures.

3.2.1

There is no one concept of public contracts in Europe; in one country they will be considered as an agreement and in another as a concession. The same contract will therefore be subject to two types of awarding procedures depending on the country where it is drawn up. The United Kingdom, which is less sensitive to the classification of contracts than countries with a Roman tradition and system of administrative law, has always considered PPPs to be simply public works contracts, when they could have been considered as public works concessions.

3.2.2

The emergence, in several states, of a specific branch of law relating to PPPs shows that these types of arrangement on the borderline between contracts and administrative management are of a specific nature that makes any a priori regulation difficult.

3.3.1

The scope of the directives far exceeds harmonisation of the drawing-up of public works contracts. The definitions adopted by the directives have been incorporated in their entirety into several national laws involving an establishment of common contractual concepts in several countries in Europe.

3.3.2

But directives 2004/17 and 2004/18 leave the legal arrangements governing national contracts up to the national laws on contract performance. The question then arises of the place granted to the private sector in public sector management.

3.4.1

The EESC reaffirms that:

3.4.2

While respecting the principle of subsidiarity in order to achieve this objective of an open market economy, the competent public authority must take account of the possibilities for competition and decide on the most appropriate solution.

3.4.3

Any contractual solution for attributing the management of public sector facilities is based on compliance with the social obligations of the country concerned and with the performance obligations set out in the contract. In the event of non-compliance with such social or performance obligations, termination of contract clauses will have to apply.

4.1

If a harmonised framework is to be created at European level, the EESC considers it desirable that the development of such contracts should be accompanied by one or more interpretative communications which would track the diversity and complexity of the phenomenon over time, rather than rush out a directive immediately which could soon turn out to be inadequate.

4.2

In addition, the EESC calls upon the Commission to consider the issue of PPPs in an overall context and, within the framework of its communications, (after a survey among the Member States) draw up a list of criteria that the public authorities could take into consideration for the social and environmental aspects. The public authorities could then use these criteria to amplify existing legislation and thus prepare a code covering the performance of contacts.

4.3

The EESC considers that:

4.4

Directive 2004/18 settles several major questions concerning the conclusion of public contracts which could be adapted to PPPs and concessions, namely: criteria, the competitive dialogue procedure and the confidentiality of bids. It seems worthwhile to clarify the following points:

4.4.1.1

The open approach in the wording of Directive 2004/18 should be maintained, especially as not all the Member States use the concessions procedure.

4.4.2.1

There should be a unified definition of these two contracts in the Member States. The one proposed above by the EESC (see point 3.1.1.6) may make it possible to confirm the special place that these contracts have on the borderline between the concept of a market and that of public administration.

4.4.3.1

Community legislation on works concessions imposes no obligation on the licensor to specify in the public works concession notice if he accepts innovative alternatives.

4.4.3.2

The EESC considers it desirable that alternatives of any kind should be accepted whenever there are consultations on these types of contract, with encouragement being given to innovation.

4.4.3.3

Indeed, the answer of a candidate being sounded out for a concession may have an original character comprising major and essential innovations in all technical, financial or commercial fields, which can be used for economic and social improvements to the living and working conditions of the consumers and employees concerned.

4.4.3.4

Such an incentive to candidates to invest a considerable amount of intellectual energy in consultations enabling such innovations is consistent with the spirit of the Lisbon strategy. It is therefore necessary to prevent the intellectual property of original proposals from such candidates from being made available to other competitors. This is a question of ethics and of providing incentives for innovation, which should be transposed into Member States' national laws under the new PPP-linked ‘competitive dialogue’ procedure.

4.4.4.1

A proposal for a concession contract has to obey the service objective defined by the licensor, but the greatest possible freedom must be allowed in choosing the ways of achieving this goal: design, scheduling of work, assumption of technical risks, etc. After one or more candidates have submitted proposals, the EESC wishes to see a dialogue between the licensor and potential concession holders aimed at finalising the concession or PPP contract according to the choices proposed for fulfilling the needs of the public authority. The old Directive 94/37 reserved the negotiated procedure for exceptional cases. From now on, the competitive dialogue has adopted the principle of negotiation for so-called complex contracts.

4.4.4.2

The competitive dialogue procedure adopted should therefore:

4.4.4.3

Finally, it must be pointed out that the conclusion of a contract between the contracting public authority and the concession holder is mandatory by establishing the responsibilities of each of the parties in line with what is proposed by the law of the countries concerned.

4.4.5.1

It is particularly important that a legal framework which is properly adapted to concessions and PPPs be embodied in the adoption of principles relating to the implementation of such contracts.

4.4.5.2

The possibility of concluding partnership contracts depends basically on the possibility of achieving a contractual balance and respecting it over a period of time.

4.4.5.3

The EESC recommends that the Commission draw up an interpretative communication encouraging a balanced distribution of risks between licensor and concession holder by allowing each state to choose the means to be used, which may evolve over time. To this end, several ideas should be included among the principles in such a communication:

4.4.5.4

The successful introduction of a system of concessions, as a form of efficient partnership between private management and funding with public investment for the provision of services of general interest, requires an appropriate legal and accounting framework, geared to the particular nature of concessions. The substantial investments and expenditure shouldered by the private business in the initial years in order to set up the infrastructure and launch the service must be spread over the duration of the concession period. The proposal to harmonise European accounting rules in its present form makes the award of concessions unviable. Spanish accounting rules, and the way they treat new concessions, could be an example worth considering if we wish to achieve forms of public-private partnership for construction and/or service projects in the European Union.

5.1

Concessions or special or exclusive rights are often awarded directly to joint ventures, who may in certain cases extend their field of activity outside their core area by simply modifying their articles of association. As a result, any competition that does occur is sometimes distorted. In this case they must keep separate accounts, so that checks may be performed to ensure that they do not practise cross-subsidies which would distort competition.

5.2.1

Before a joint entity is set up, the competent authority must take account of the possibilities of competition in the marketplace and decide on the most appropriate solution.

5.2.2

In the interests of transparency and efficiency, the procedures for setting up joint entities must be announced before calls for tenders and clearly call upon private competitors to be able, if necessary, to participate in the setting-up of quasi-public companies. Finally, when a public authority puts out a new project for tender by a local joint entity, it must ensure, when doing so, that:

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allow PPPs to evolve in various forms for several years;

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get the Member States to issue systematic communications on the various types of PPP and the difficulties encountered (advantages and disadvantages compared with conventional forms);

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set up an observatory for studying the evolution of PPPs, with representatives from the Member States, the Commission and civil society, including the EESC (to assess experiences in relation to a variety of criteria such as costs, access to services, the impact on employment, competitiveness, the environment etc.);

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stress that European publication thresholds (e.g. on labour and services) apply for PPPs and concessions; below these European thresholds each Member State will apply its own rules so as to avoid unnecessary red tape,

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publish a interpretative communication before 2007 clarifying:

‘The use of long-term contracts to provide private financing for public works is growing in several countries. These are not the same as public procurement contracts.’

‘The ESC desires that concessions be the subject of a specific regime, especially as regards trans-European networks.’

‘The ESC proposes that the EU Commission encourage the promotion of new contractual arrangements based on private investment in public infrastructures.’