The European Community ("ЕС") lays down a number of specific rulings covering PPPs which can be consulted in drawing up national PPP legislation:
• Directive on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts of 31 March 2004 ("Public Contracts Directive") defines and regulates precisely "public contracts";
• The Interpretative Communication on Concessions of 29 April 2005 ("Communication on Concessions") defines the characteristics of concessions and general rules to be respected in the concession granting process;
• Guidelines for Successful Public-Private Partnerships (March 2003) ("PPP Guidelines");
• The Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions (April 2004), ("PPP Green Paper"). The PPP Green Paper provides that, "In general, the term [PPP] refers to forms of cooperation between public authorities and the world of business which aim to ensure the funding, construction, renovation, management or maintenance of an infrastructure or the provision of a service";22
• Communication on Public-Private Partnerships and Community Law on Public Contracts and Concessions (November 2005);23
• Public Contracts Directive: Public contracts (supply, works and service contracts) are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services (Public Contracts Directive, art. 1). It defines also "public works concession";24 and EU Procurement directives: In developing PPP legislation reference might also be made to the EU procurement directives introducing competitive dialogue procedures.
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22 It specifies furthermore that the following elements normally characterize PPPs:
• Relatively long duration of the relationship;
• Funding, in part from the private sector (public funds, "in some cases rather substantial", may be added);
• Important role of the economic operator (participates at different stages of the project: design, completion, implementation, funding); and
• Distribution of risks between the public and the private partner; risks generally borne by the public sector are transferred to the private operator (not necessarily all or major).
23 The term concession is defined indirectly in the Communication on Concessions, by defining the scope of application of the Communication and by distinguishing concessions from public contracts: "This communication therefore concerns acts attributable to the state whereby a public authority entrusts to a third party - by means of a contractual act or a unilateral act with the prior consent of the third party - the total or partial management of services for which that authority would normally be responsible and for which the third party assumes the risk. Such services are covered by this communication only if they constitute economic activities. "
24 A public works concession is distinguished from a public works contract in that the works concession involves the transfer of the risks inherent in operation. A privately operated toll motorway is an example of a public works concession. However, if public authorities guarantee reimbursement of the financing, this would be considered as a public works contract. The distinction between a services concession and a public service contract is based on the same criteria: transfer of risks inherent in operation.