The PPP Green Paper was developed in answer to the European Parliament suggestion that the possibility of adopting a draft directive on setting universal rules for concessions and other forms of PPPs should be assessed. The Green Paper is also one of the actions planned under the European Initiative for Growth. Neither the PPP Green Paper, nor the Report on Public Consultation aim to draw a political conclusion. Following the public debate on the PPP Green Paper, the Commission adopted on 15 November 2005 the Communication on PPPs and Community Law on Public Procurement and Concessions. This Communication presents policy options with a view to ensuring effective competition for PPPs without unduly limiting the flexibility needed to design innovative and often complex projects.17
The PPP Green Paper aims at launching the debate in the Community, to find out whether the economic operators in member states need Community intervention to provide access to certain forms of PPP under the conditions of legal certainty and effective competition. Such a debate should concentrate on the specific rules that should be applied when a country's government (or local government body) is deciding on entrusting a (public sector) mission to a third party. The definition of what is a "third party" is not clearly defined it he paper.
The PPP Green Paper suggests no universal definition of PPPs, which could have been used during the public consultation; this is because of the variety of forms and scale of such arrangements. There is, however, a definition of a 'concession' suggested in a stricter format.
Respondents to the Green Paper questioned the choice of private partners in 'institutionalized PPPs' in terms of the rules that should be applied when making this choice. Institutionalized PPPs (as opposed to PPPs that are purely contractual) are public service undertakings held jointly by both a public and a private partner. Under to such conditions, and given the significance of the type of PPP arrangement, the procurement procedure should be shaped at the EU level. A specific procurement condition of particular interest to the respondents, concerned the difference between 'in-house' and third party entities.18
In the PPP Communication of the Commission the following
1. a legislative initiative is the preferable option as regards concessions. However, before formally proposing legislation further in-depth analysis will need to be undertaken in accordance with the principles of "Better Regulation".
2. an Interpretative Communication would be better suited than fully-fledged legislation to the demand for the EU rules as to the choice of private partners in "institutionalised PPPs", i.e. public service undertakings held jointly by both a public and a private partner. .It is envisaged to prepare the interpretative document on PPPs in the course of 2006. In 2006, the Commission services will also conduct an in-depth analysis of the impacts of a possible legislative initiative on concessions. The final decision whether or not to take this latter measure, and on its concrete shape, depends on the result of this impact assessment.
The PPP Green Paper and proceeding Consultation have increased communication between various stakeholders concerning the PPP policy formulation process.