65. The establishment of an institutionalised PPP may also lead to a change in the body of shareholders of a public entity. In this context, it should first be emphasised that the changeover of a company from the public sector to the private sector is an economic and political decision which, as such, falls within the sole competence of the Member States.59
66. It should also be pointed out that Community law on public contracts is not as such intended to apply to transactions involving simple capital injections by an investor in an enterprise, whether this latter be in the public or the private sector. Such transactions fall under the scope of the provisions of the Treaty on the free movement of capital60, implying in particular that the national measures regulating them must not constitute barriers to investment from other Member States.61
67. On the other hand, the provisions on freedom of establishment within the meaning of Article 43 of the Treaty must be applied when a public authority decides, by means of a capital transaction, to cede to a third party a holding conferring a definite influence in a public entity providing economic services normally falling within the responsibility of the State.62
68. In particular, when the public authorities grant an economic operator a definite influence in a business under a transaction involving a capital transfer, and when this transaction has the effect of entrusting to this operator tasks falling within the scope of the law on public contracts which had been previously exercised, directly or indirectly, by the public authorities, the provisions on freedom of establishment require compliance with the principles of transparency and equality of treatment, in order to ensure that every potential operator has equal access to performing those activities which had hitherto been reserved.
69. In addition, good practice recommends ensuring that such a capital transaction does not in reality conceal the award to a private partner of contracts which might be termed public contracts, even concessions. This is the case in particular when, before the capital transaction, the entity in question is awarded, directly and without competition, specific tasks, with a view to making the capital transaction attractive.
| 18. What experience do you have of arranging institutionalised PPPs and in particular, in the light of this experience, do you think that Community law on public contracts and concessions is complied with in such cases. If not, why not ? 19. Do you think that an initiative needs to be taken at Community level to clarify or define the obligations of the contracting bodies regarding the conditions requiring a call for competition between operators potentially interested in an institutionalised project? If so, on what particular points and in what form ? If not, why not? In general and independently of the questions raised in this document: 20. In your view which measures or practices act as barriers to the introduction of PPPs within the European Union? 21. Do you know of other forms of PPPs which have been developed in countries outside the Union? Do you have examples of "good practice" in this framework which could serve as a model for the Union? If so, please elaborate. 22. More generally, given the considerable investments needed in certain Member States in order to pursue social and sustainable economic development, do you think a collective consideration of these questions pursued at regular intervals among the actors concerned, which would also allow for the exchange of best practice, would be useful? Do you consider that the Commission should establish such a network? |
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59. This follows from the neutrality principle of the Treaty in relation to ownership rules, recognised by Article 295 of the Treaty.
60. Article 56 ff. of the EC Treaty.
61. See Communication of the Commission on certain legal aspects concerning intra-EU investment OJ No C 220, 19 July 1997, p.15.
62. See, on these lines, the Judgment of the Court of 13 April 2000, Case C-251/98, Baars, ECR I-2787.