Public Private Partnerships are forms of cooperation between
public authorities and the private sector that aim to provide a
public service or project. They result in the setting up of complex
legal and financial arrangements involving private operators and
public authorities carrying out infrastructure projects or services
of use to the public.
These partnerships have been developed in several areas of the
public sector and are widely used within the
EU
to
ensure the provision of services, in particular in the areas of
transport, public health, education, public safety,
IT
, waste management and water distribution.
But under Community law there is no specific legal system
governing the many different forms of
PPP
s, and
contracts for these partnerships are not in general covered by the
EU rules on the single market. In certain cases, they can be
subject to the detailed provisions of the European Directives on
public procurement. However, other cases and in particular certain
"concessions" are not covered.
The Commission wants to ensure that the current legal framework
does not prevent economic operators within the
EU
from
gaining access to the different types of
PPP
s. To this
end the Commission launched a consultation on the issue in April
last year, and has now published the results.
According to the Commission, a clear majority of respondents
supported an
EU
initiative, legislative or
non-legislative, to deal with the question of "concessions". Both a
clarification of the term and the rules applicable to their award
is required, said respondents.
Many respondents asked how
EU
rules should apply to
the choice of private partners in "institutionalised PPPs", which
are public service undertakings held jointly by both a public and a
private partner.
In particular, respondents asked about the difference between
'in-house' and third-party entities.
EU
law on public
contracts and concessions applies when a contracting body entrusts
a task to a third party, unless the relation between the two is so
close that the latter is equivalent to an 'in-house' entity. In
general, public-sector respondents argued for widening the
definition of 'in-house', while the private sector wished to
maintain its existing limited scope.
The Commission is now preparing a Communication, due to be ready
before the end of the year, which will indicate the Commission's
preferred way forward – whether this is through legislation,
interpretative communications or initiatives to improve the
coordination of national practice and exchange of good practice
between Member States.
