Brussels, 28/11/2005 (Agence Europe) - On 15 November, the Commission adopted a communication on public-private partnerships (PPP), in which it takes stock of possible political options at Community level to ensure healthy competition within this field, further to the consultation launched in 2004 when a specific Green Paper was published (EUROPE 8949 and 8699).. The Commission will launch an impact study on the costs and benefits of a European legislative initiative for concessions, a particular form of PPP. There will be no proposed directive until 2007. In 2006, the Commission is to publish an interpretative communication on so-called "institutionalised" PPPs, which will lead to the creation of a mixed legal entity, which is both public and private. On its web site, it will publish a guide to competitive dialogue, a procedure for the allocation of public contracts which was brought in by new European directives. The idea of creating a centre of expertise under the aegis of the European Investment Bank (EIB) is making progress in the case of large cross-border infrastructure projects, particularly for the trans-European networks. "In the field of PPP, it is obviously by choosing private partners on the basis of fair competition that you get the most for your money", said Charlie McCreevy, speaking in Copenhagen on 17 November, at an international forum on PPP. According to the Commissioner for the Internal Market, the "broad public consultation" launched with the Green Book "showed that fair competition is not currently guaranteed within the EU", and that "the regulatory framework governing the choice of private partners in the case of PPP is incomplete, or lacks clarity".
In the field of concessions, the vast majority of those who took part in the consultation stressed the need for a stable and coherent legislative framework, in particular to bring down the cost of transactions. The Commission believes that an "update of the interpretative communication of 2000 (...) would have a certain added value", but that it "is highly unlikely to respond to the requirement for greater legal security". In the view of Mr McCreevy, therefore, it is clear "that a legislative initiative is required at Community level". Nonetheless, any proposed directive will be preceded by a detailed "impact analysis", the results of which will probably be published "at the end of next year". The Commission will guide this analysis, with the help of a private service-provider.
What will be the content of the Community directive covering work and services concessions? The future legislation will provide a clear delimitation between concessions and public contracts, call for adequate publicity prior to the allocation of contract and define rules applicable to the selection of concession-holders, particularly on equality of treatment. It will also tackle the stakes related to the long duration of concessions and the cross-border nature of certain projects. According to the Commission, it is too early, at this stage, to take position on the scope of any future directive, including setting thresholds, above which the new rules would come into force.
A concession, be it for work or for services, is a form of PPP which differs from traditional public contract because the economic operator holding the contract: -bears a considerable proportion of the operational and financial risks; -is paid wholly or partly from running the work in question. A motorway or bridge operating a toll system can be the object of concessions. At this moment in time, an interpretive communication of 2000 clarifies the European rules applicable, particularly relating to the fundamental principles of the EC Treaty (transparency, equality of treatment, proportionality, mutual recognition). Only concessions for works also respect certain European rules on public works contracts (1993/37/EEC). The new European directives on procedures for the allocation of public contracts (2004/17/EC and 2004/18/EC), which will be applicable as of the end of January 2006, do not modify the situation.
PPPs are described as institutionalised when they involve the creation of an entity held jointly by a public partner and a private partner with a view to providing public services. "A clear majority of stakeholders who responded to the consultation of the Green Paper are dissatisfied with current practices for creating institutionalised PPPs", Mr McCreevy noted. The majority of them feel that the Commission should "urgently" clarify the existing rules by dint of a "non-legislative interpretive document", because " legislating is not the best way to make progress in this field". An interpretive communication on institutionalised PPPs should clarify the application of rules for public contracts on: 1) the creation of mixed-capital entities, the objective of which is to provide services of general economic interest (SGEI); 2) the participation of private companies in the capital of public enterprises which provide such services. In view of the Commission, this type of instrument is the best way forward, because setting up public-private partnerships to provide SGEI is a relatively recent concept. However, if a future analysis shows that a communication is not enough to ensure the correct application of Community law, it reserves the option to propose a specific legislative instrument.