Public authorities at all levels are increasingly interested in co-operating with the private sector when ensuring the provision of an infrastructure or a service. The interest in such co-operation, commonly referred to as Public-Private Partnerships (PPPs), is partly due to the benefit public authorities could have from the know-how of the private sector, in particular in order to increase efficiency, partly this interest is due to public budget constraints. However, PPPs are not a miracle solution: for each project it is necessary to assess whether partnership really adds value to the specific service or public works in question, compared with other options such as concluding a more traditional contract.
Community law is neutral as regards whether public authorities choose to provide an economic activity themselves or to entrust it to a third party. If public authorities decide, however, to involve third parties in conducting an activity, Community law on public procurement and concessions may come into play.
The main purpose of Community law on public procurement and concessions is to create an Internal Market in which the free movement of goods and services and the right of establishment as well as the fundamental principles of equal treatment, transparency and mutual recognition are safeguarded and value for money obtained when public authorities buy products or mandate third parties with performing services or works. In view of the increasing importance of PPPs it was considered necessary to explore the extent to which existing Community rules adequately implement these objectives when it comes to awarding PPP contracts or concessions. This should enable the Commission to assess whether there is a need to clarify, complement or improve the current legal framework at European level. To this end, the Commission adopted the Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions1 on 30 April 2004.
The debate launched by the Green Paper met with considerable interest and was generally welcomed. The Commission received close to 200 contributions from a wide variety of respondents, including many of the Member States. Both the European Economic and Social Committee2 and the Committee of the Regions3
adopted opinions on the Green Paper. In May 2005 a report analysing all contributions submitted in the course of the public consultation was published.4
This Communication presents the policy options following the consultation, with a view to ensuring effective competition for PPPs without unduly limiting the flexibility needed to design innovative and often complex projects. Stating its policy preferences at this stage is in line with the Commission's commitment to public accountability and to transparency in exercising its right of initiative, which is a basic principle of "Better Regulation for Growth and Jobs in the European Union".5
While this Communication seeks to draw policy conclusions from the PPP Green Paper consultation, the choice of options it sets out has to be seen in a wider context, including conclusions drawn from judgments of the European Court of Justice, experience with procedures the Commission launched under Article 226 EC Treaty against Member States and bilateral contacts with stakeholders.
While the consultation provided both factual information on practical experiences with PPPs and stakeholders' opinions on preferred policy options, it is no substitute for in-depth analysis of the impacts of such policies. Consequently, the final decision on possible legislative initiatives for clarifying, complementing or improving Community law on public procurement and concessions will be subject to impact assessment as required under "Better Regulation" principles.
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1 COM(2004) 327 final, 30.4.2004.
2 Opinion on the Green Paper on public-private partnerships and Community law on public contracts and concessions, Brussels, 27-28 October 2004, CESE 1440/2004.
3 Opinion of the Committee of the Regions of 17 November 2004 on the Green Paper on public-private partnerships and Community law on public contracts and concessions (COM(2004) 327 final), ECOS-037.
4 SEC(2005) 629, 3.5.2005. This report and most of the contributions sent to the Commission are available on the Commission's website at: http://europa.eu.int/comm/internal_market/publicprocurement/ppp_en.htm.
5 See Communications from the Commission, European Governance: Better lawmaking, COM(2002) 275 final, 5.6.2002, and Better Regulation for Growth and Jobs in the European Union, COM(2005)97 final, 16.3.2005.