This chapter examines how the European Union decided to regulate concessions and PPPs within the realm of European Union law and considers the reasons behind the decision of EU legislator to harmonise only concessions, and not PPPs. The chapter shows that the road to Directive 2014/23/EU on the award of concession contracts was long and winding. It is held that although the Directive sought to provide greater certainty, the contours of European Union public procurement law following the adoption of the Directive will probably remain unclear. The chapter also shows that the lack of specific provisions of European Union law directly regulating issues related to PPP did not impede the actions of European institutions, which adopted a number of soft law instruments in this regard.
Roberto Caranta and Paolo Patrito
Concessions as a form of cooperation between government and private entrepreneurs to build works or deliver services have been used in Europe for centuries. Public-private partnerships (PPPs) and similar arrangements such as PFIs are a rather novel development arising in the US and the UK in the last part of the past century. Works and service concessions on the one hand and PPPs on the other mostly cover the same kind of contractual arrangements but they are often treated as discrete phenomena in legislation and practice. This chapter traces the conceptual history of concessions and PPPs, highlighting the similarities in their legal framework and providing reasons why politicians and business scientists failed to see or at least acknowledge those similarities.
Carina Risvig Hamer
This chapter deals with the national legislation regarding concessions and PPPs in Denmark. Very few concessions and PPPs have been established in Denmark, and even after the Concessions Directive entered into force there the number of concessions has not increased significantly. Besides the EU procurement rules, no particular national rules exist. In line with this, national case law relating to concessions and PPPs is very limited. The Danish Government has been very positive in promoting PPPs, but reluctant to introduce legislation, hence PPPs fall under the general procurement rules as they involve works and services.
As opposed to concessions, which are a very common way for public bodies to outsource the provision of public services or building activities, deeply rooted in the history of French public administration, contractual PPP, inspired by the British PFI, has appeared as a newcomer in the French legal landscape. Yet, a decade of practice has made it quite a controversial contractual formula. This is mostly due to its costly nature regarding traditional public procurements for works, as well as the fact that local authorities used to overestimate their needs in terms of infrastructures in order to demonstrate that PPP was the best contractual tool. Because of such questionable practices, contractual PPPs are now treated with extreme wariness. The number of PPPs signed during the last couple of years has dramatically dropped. This is not the case with institutional PPPs, which are still usually favoured by local authorities.
The chapter describes and analyses the practical relevance and the legal framework of public-private-partnership (PPP) projects and concession agreements in Germany. While larger contract-based PPP projects are relevant in certain areas and sectors (such as the construction and maintenance of federal highways or larger administrative buildings), they have not yet experienced a breakthrough on a broad basis, and such a breakthrough is unlikely to be forthcoming at the present time. Against this background, it is hardly surprising that the legal regulations on PPPs have not yet been compiled in one or more codifications. In contrast, institutionalized PPP constructions and public undertakings, as well as the awarding of both works and service concessions in smaller contexts, beyond large and consolidated PPP projects, is a ‘booming’ model of providing public services in Germany.
Katia Bonsignore and Mario E. Comba
The transposition of the 2014 EU public procurement Directives gave the Italian Legislator the chance to carry out a profound reorganisation of the existing massive national legislation. The outcome of this endeavour was reflected in Legislative Decree n.50/2016, better known as the Code of Public Contracts (referred to in this chapter as the ‘new Code’). Within the framework of the new Code, This chapter focuses on PPP and concession contracts, providing comparative references to previous national regulation as well as EU legislation. The aim of this study is to analyse the current regulation of these contracts in trying to assess to what extent the new Italian system actually achieved the intended purposes of simplification and reorganisation. This study shows some remarkable endeavours of the Italian Legislator, however the intended simplification of the regulatory framework, not only on PPPs and concessions, but on public procurement in general, needs further and urgent law interventions.
This chapter deals with the national legislation and practice regarding concessions and PPPs in Poland. It focuses on the general legal and policy framework for the regulation of PPPs and concessions, scope of application and contract management. The chapter points out the problem of uncoordinated and possibly conflicting pieces of legislation regarding PPPs and concession contracts. It shows that both PPPs and concessions are quite new concepts in Poland and the number of concluded PPPs or concession contracts does not correspond to the actual potential of these instruments. Thus, the chapter describes recent amendments to national legislation concerning PPPs which aimed at promoting PPP as a method of financing projects.
Pedro Cerqueira Gomes
This chapter aims to provide an analysis of the most relevant rules applicable to PPPs and concessions in the Portuguese legal order. To this end, several aspects have been covered, namely, the legal definition, the ex-ante provisions, the contract management provisions and the duration of PPPs and concession contracts. In addition, special attention is given to the concept of operating risk from a normative perspective and the role of the Technical Unit for Project Monitoring in the PPPs Law. Finally, this article includes aspects of the latest legal reform to the PPPs Law, provided by Law-Decree n.º 170/2019 of 4 December, which, in accordance with the preamble of the Law-Decree, aims to adapt the legal regime of PPPs to the ‘new social reality’.