Fair competition between the public and the private sector

Document Sample
Fair competition between the public and the private sector Powered By Docstoc
					Fair competition between the public
and the private sector - Community
           law on public
     contracts and concessions

             Florian Ermacora
   European Commission, DG MARKT.C2
http://europa.eu.int/comm/internal_market/publicprocurement/ppp_en.htm




                                                                         1
The principles of equal treatment
   and transparency have to be
    applied whenever a public
 authority entrusts the supply of
economic activities to a third party.


                                        2
The following situations do not constitute
per se exceptions to the competition rule:
1. Award of public tasks to mixed
   capital companies (Institutionalised
   Public-Private Partnerships)
2. Award of service concessions
3. Award of public tasks to public
   authorities or public companies
   (public-public co-operation /
   intermunicipal co-operation)

                                             3
1) Award of public tasks to mixed capital
   companies – Institutionalised Public
         Private Partnerships
• The EC Treaty applies when a public authority
  entrusts the supply of economic activities to a
  third party.
• The EC Public Procurement Directives apply to
  the award of public contracts independently of
  whether this award is combined with the
  establishment of a company or not.
• Any private participation in the capital of a
  company excludes the in-house status of this
  company (ECJ, C-26/03, Stadt Halle).


                                                    4
 The process of founding Institutionalised
   Public Private Partnerships (IPPP)
Community law requires a contracting entity to
follow a fair and transparent procedure
 either when selecting the private partner,
who supplies goods, works or services through
his participation in the IPPP,
 or when granting a public contract or
concession to the public-private entity.

   No double tendering procedure required.

                                                 5
   The phase after founding the IPPP

• IPPP must remain within the scope of their
  initial object and can as a matter of
  principle not obtain any further public
  contracts or concessions without a
  procedure respecting EC law.
• But they must be able as well to adjust –
  within certain limits – to changes in the
  economic, legal or technical environment.

                                               6
   2) The award of service concessions

Definition of service concession:
 Contract of the same type as a public
 contract except for the fact that the
 consideration for the services consists
 either solely in the right to exploit the
 services or in this right together with
 payment.


                                             7
     Legal regime for the award of
         service concessions
 The fundamental rules of the Treaty, in particular
   the principle of non discrimination apply to the
   award of service concessions (ECJ, C-324/98,
                      Telaustria)
• The fundamental rules of the Treaty include:
  equality of treatment, transparency,
  proportionality
• Advertising must be sufficient to open the
  services market up to competition
• Applicable regime further spelt out in
  Commission Interpretative Communication on
  concessions under Community law of April 2000

                                                      8
3) Award of public tasks to public authorities
            or to public companies
        – Intermunicipal co-operation
• The national legislator could not a priori
  exclude relations between public bodies
  from the scope of procurement rules (ECJ,
  C-84/03, Commission vs Spain).
• Thus, the award of an economic activity
  from a contracting authority to another
  public entity is in principle covered by
  procurement rules.

                                                 9
  Forms of intermunicipal co-operation not
      covered by procurement rules
 In-house situations
  Contracting authority has a power of decisive
  influence over both strategic objectives and
  significant decisions of the third party (ECJ, C-
  458/03, Parking Brixen) or
  third party is an instrument and technical
  service of the contracting authority.
 Transfer of competences
  One contracting authority transfers completely
  public tasks to another public entity which
  performs these tasks thereafter in full
  independence.

                                                      10
                Contact

European Commission
Directorate General for Internal Market and
Services (Unit MARKT.C2)
Florian Ermacora
florian.ermacora@ec.europa.eu
Tel.: 0032.2.2985126
Fax.:0032.2.2969498



                                              11