8. This Green Paper discusses the phenomenon of PPPs from the perspective of Community legislation on public contracts and concessions. Community law does not lay down any special rules covering the phenomenon of PPPs. It nonetheless remains true that any act, whether it be contractual or unilateral, whereby a public entity entrusts the provision of an economic activity to a third party must be examined in the light of the rules and principles resulting from the Treaty, particularly as regards the principles of freedom of establishment and freedom to provide services (Articles 43 and 49 of the EC Treaty)7, which encompass in particular the principles of transparency, equality of treatment, proportionality and mutual recognition.8 Moreover, detailed provisions apply in the cases covered by the Directives relating to the coordination of procedures for the award of public contracts.9 10 These Directives are thus "essentially aimed at protecting the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State and, to that end, to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body governed by public law may choose to be guided by considerations other than economic ones."11 However, the application of the detailed provisions of these Directives is circumscribed by certain assumptions and mainly concerns the award of contracts.
9. The rules applicable to the selection of a private partner derive firstly from the definition of the contractual relationship which that party enters into with a contracting body.12 Under Community secondary legislation, any contract for pecuniary interest concluded in writing between a contracting body and an operator, which have as their object the execution of works, the execution of a work or provision of a service, is designated as a "public works or public services contract". The concept of "concession" is defined as a contract of the same type as a public contract except for the fact that the consideration for the works to be carried out or the services to be provided consists either solely in the right to exploit the construction or service, or in this right together with payment.
10. The assessment of the elements in these definitions must, in the view of the Court, be made in such a way as to ensure that the Directive is not deprived of practical effect.13 For example, the formalism attached to the concept of contract under national law cannot be advanced to deprive the Directives of their practical effect. Similarly, the pecuniary nature of the contract in question does not necessarily imply the direct payment of a price by the public partner, but may derive from any other form of economic consideration received by the private partner.
11. The contracts denoted as public works or public services contracts, defined as having priority,14 are subject to the detailed provisions of Community Directives. The concessions of so-called "non-priority" works and public services contracts are governed only by some sparse provisions of secondary legislation. Lastly, some projects, and in particular services concessions, fall completely outside the scope of secondary legislation. The same is true of any assignment awarded in the form of a unilateral act.
12. The legislative framework governing the choice of private partner has thus been the subject of Community coordination at several levels and degrees of intensity, with a wide variety of approaches persisting at national level, even though any project involving the award of tasks to a third party is governed by a minimum base of principles deriving from Articles 43 to 49 of the EC Treaty.
13. The Commission has already taken initiatives under public procurement law to deal with the PPPphenomenon. In 2000 it published an Interpretive Communication on concessions and Community public procurement law,15 in which it defined, on the basis of the rules and principles derived from the Treaty and applicable secondary legislation, the outlines of the concept of concession in Community law and the obligations incumbent on the public authorities when selecting the economic operators to whom the concessions are granted. In addition, the new Directives of the European Parliament and the Council designed to modernise and simplify the Community legislative framework, establish an innovative award procedure, designed principally to meet the specific features of the award of "particularly complex contracts", and thereby certain forms of PPPs. This new procedure, designated as "competitive dialogue", allows the public authorities to hold discussions with the applicant businesses in order to identify the solutions best suited to their needs.
14. The fact remains that many representatives of interested groups consider that the Community rules applicable to the choice of businesses called on to cooperate with a public authority under of a PPP, and their impact on the contractual relationships governing the execution of the partnership, are insufficiently clear and lack homogeneity between the different Member States. Such a situation can create a degree of uncertainty for Community players that is likely to represent a genuine obstacle to the creation or success of PPPs, to the detriment of the financing of major infrastructure projects and the development of quality public services.
15. The European Parliament invited the Commission to examine the possibility of adopting a draft Directive aimed at introducing homogeneous rules for the sector of concessions and other forms of PPPs.16 The Economic and Social Committee also considered that such a legislative initiative was called for.17
16. In the context of its Strategy for the internal market 2003-2006,18 the Commission announced that it would publish a Green Paper on PPPs and Community law on public procurement and concessions, in order to launch a debate on the best way to ensure that PPPs can develop in a context of effective competition and legal clarity. The publication of a Green Paper is also one of the actions planned under the European Initiative for Growth.19 Lastly, it responds to certain requests made in the course of the public consultation on the Green Paper on services of general interest.20
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7. The rules on the internal market, including the rules and principles governing public contracts and concessions, apply to any economic activity, i.e. any activity which consists in providing services, goods, or carrying out works in a market, even if these services, goods or works are intended to provide a "public service', as defined by a Member State.
8. See Interpretive Communication of the Commission on concessions in Community law, OJ C 121, 29 April 2000.
9. i.e. Directives 92/50/EEC, 93/36/EEC, 93/37/EEC, 93/38/EEC, relating to the coordination of procedures for the award respectively of public service contracts, public supply contracts, public works contracts, and contracts in the water, energy, transport and telecommunications sectors. These Directives will be replaced by Directive 2004/18/EC of the European Parliament and of Council of 31 March 2004 relating to the coordination of procedures for the award of public works, supply and services contracts, and Directive 2004/17/EC of the European Parliament and of the Council of of 31 March 2004 relating to the coordination of procedures for the award of contracts in the water, energy, transport and postal services sectors, which will be published in the near future in the OJ. The [provisional] version of the new Directives may be consulted at the website http://www.europarl.eu.int/code/concluded/default_2003_en.htm.
10. Moreover, in certain sectors, and particularly the transport sector, the organisation of a PPP may be subject to specific sectoral legislation. See Regulation (EEC) No 2408/92 of the Council on access of Community air carriers to intra-Community air routes, Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States, Council Regulation (EEC) No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Regulation (EEC) No 1893/91, and the amended proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway (COM(2002) 107 final).
11. Joint cases C-285/99 and C-286/99, Impresa Lombardini v. ANAS, Judgment of 27 November 2001, paragraph 36 and, to that effect case C-380/98, University of Cambridge, ECR I-8035 and Case C-19/00, SIAC construction, ECR I-7725.
12. In PPPs, the public partners are primarily national, regional or local authorities. They may also be public law bodies created to fulfil general interest tasks under State control, or certain network system operators. To simplify matters, the term "contracting body" will be used in this document to designate all of these agencies. Thus this term covers "contracting authorities" within the meaning of Directives 92/50/EEC, 93/36/EEC, 93/37/EEC and 2004/18/EC and the contracting entities of the type "public authorities" and "public undertakings" within the meaning of Directives 93/38/EEC and 2004/17/EC.
13. Judgment of the Court of 12 July 2001, Case C-399/98, Scala, ECR I-5409, see in particular points 53 to 55.
14. i.e. those listed in Annex IA of Directive 92/50/EEC or Annex XVIA of Directive 93/38/EEC.
15. Interpretative Communication on concessions under Community law, OJ C 121, 29 April 2000.
16. Opinion of the European Parliament (first reading) on the proposal of the Commission, COM (2000) 275, 10.05.2002.
17. Opinion ESC, OJ C 14, 16.1.2001, rapporteur Mr Levaux, point 4.1.3 and Opinion, ESC, OJ C 193, 10.07.2001, repporteur Mr Bo Green, point 3.5.
18. Strategy for the internal market, Priorities 2003-2006, COM (2003) 238 final.
19. Communication from the Commission "A European initiative for growth: Investing in networks and knowledge for growth and jobs", COM (2003) 690 final, 11 November 2003. This report was approved by the Brussels European Council on 12 December 2003.
20. See Report on the results of the consultation on the Green Paper on general interest services. See above, footnote 5.