51. It is the Commission's experience that the application of subcontracting rules sometimes gives rise to uncertainties or queries in the context of PPP arrangements. Certain parties have claimed, for example, that the contractual relations between the project company, which becomes the holder of the contract or the concession, and its shareholders, raise a certain number of legal issues. In this respect, the Commission wishes to point out that when the project company is itself in the role of contracting body, it must conclude its contracts or concession contracts in the context of a competition, whether or not these are concluded with its own shareholders. The only case where this does not apply is when the services entrusted by a project company to its shareholders have already been the subject of a competition by the public partner prior to the formation of the company undertaking the project.46 However, when this company is not in the role of contracting body, it is in principle free to conclude contracts with third parties, whether these be its own shareholders or not. By way of exception, when the project company is a "works concessionaire", certain publicity requirements apply to the award of works contracts exceeding a threshold of EUR 5 million, with the exception of contracts concluded with businesses that have formed a group in order to win the concession, or their affiliated companies.47
52. In principle, private partners are free to subcontract part or all of a public contract or a concession. However, it should be pointed out that, in the case of the award of public contracts, tenderers may be asked to indicate in their tenders the share of the contract which they intend to subcontract to third parties.48 In the case of public works concessions where the value exceeds EUR 5 million, the contracting body may require the concessionaire to award contracts representing a minimum of 30% of the total value of the work for which the concession contract is to be awarded to third parties.49
| 15. In the context of PPPs, are you aware of specific problems encountered in relation to subcontracting? Please explain. 16. In your opinion does the phenomenon of contractual PPPs, involving the transfer of a set of tasks to a single private partner, justify more detailed rules and/or a wider field application in the case of the phenomenon of subcontracting? 17. In general, do you consider that there is a need for a supplementary initiative at Community level to clarify or adjust the rules on subcontracting? |
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46. Article 13 of Directive 93/38/EEC provides for a derogation when the sub-contracting contracts for services are awarded by a network systems operator acting as contracting entity to an affiliated enterprise. Article 23 of Directive 2004/17/EC extends this exception to sub-contracting contracts covering supplies or works.
47. Article 3 (4) of Directive 93/37/EEC and Articles 63 to 65 of Directive 2004/18/EC. In the latter articles the above‑mentioned threshold is fixed at EUR 6 242 000.
48. Article 17 of Directive 93/36/EEC, Article 20 of Directive 93/37/EEC, Article 25 of Directive 92/50, Article 27 of Directive 93/38. See also Article 25 of Directive 2004/18/EC and Article 37 of Directive 2004/17/EC.
49. Article 3(2) of Directive 93/37/EEC. See also Article 60 of Directive 2004/18/EC.