Openbare aanbesteding: Commissie lanceert publieke discussie over publiek-private samenwerking in Groenboek (en)
On the basis of a Green Paper, the European Commission has launched a debate on the desirability of adapting the Community rules on public procurement and concessions to accommodate the development of public-private partnerships (PPPs). The main objective is to see whether it is necessary to improve the current rules in order to ensure that economic operators have access to PPPs under conditions of legal clarity and real competition. Over the last ten years PPPs have been developing in several member states. They are now used in many areas of the public sector. The choice of a private partner by a public authority must be made in accordance with Community rules on the awarding of public contracts. However, there is no specific system under Community law for PPPs and the Community rules on awarding public contracts are applied to PPPs with differing degrees of intensity. The Green Paper sets out the scope of Community rules, with a view to identifying any uncertainties and assessing to what extent Community intervention might be necessary. The full text of the Green Paper is available at the following address: http://europa.eu.int/comm/internal_market/ppp
Internal Market Commissioner Frits Bolkestein said: "PPPs are booming. They can be an important tool for improving the quality of public services and supporting growth in Europe. The EU needs a suitable regulatory framework for developing these partnerships in order to apply transparency and fair competition for the benefit of the taxpayer. There is a lot at stake, and I call upon all interested parties to respond to this consultation we will listen to what you have to say."
Under Community law there is no specific legal system governing the many different possible forms of PPPs. Contracts for these partnerships signed by public authorities with private companies are not, in general, covered by the EC Treaty rules on the single market. In certain cases, they can be subject to the detailed provisions of the Directives on public procurement. However, other cases and in particular certain "concessions" are not covered. The Community legal framework is thus the subject of more or less intensive Community coordination at several levels. It is necessary to ensure that this legal framework does not form an obstacle to economic operators' access to the different types of PPPs.
To this end, the Green Paper sets out the way in which the rules and principles deriving from Community law on public contracts and concessions apply when a private partner is selected, and then for the duration of the contract, in the context of different PPP arrangements. The Green Paper also asks a set of questions intended to find out more about how these rules and principles work in practice, so that the Commission can determine whether they are sufficiently clear and suit the challenges and characteristics of PPPs.
The Green Paper addresses various topics directly linked to the public procurement aspect of PPPs, in particular:
the framework for the procedures for selecting a private partner, and in particular the advantages in this context of the competitive dialogue procedure introduced by the new Directive on public procurement (see IP/04/150), which allows public authorities to hold discussions with applicant businesses in order to identify the solutions best suited to their needs;
setting up of PPPs on the initiative of the private sector;
the contractual framework and contract amendments during the life of a PPP;
subcontracting.
In this regard, the Green Paper addresses both PPPs created on the basis of purely contractual links ("contractual PPPs") and arrangements involving the joint participation of a public partner and a private partner in a mixed-capital legal entity ("institutional PPPs").
The Green Paper is one of the priorities identified by the Commission in its internal market strategy for 2003-2006 (see IP/03/645 and MEMO/03/100) and contributes to the measures planned as part of the initiative on growth in Europe (see IP/03/1521).
On the basis of the Green Paper the Commission is launching a public consultation in which it seeks comments from all interested parties. The consultation period will end on 30 July 2004. On the basis of the contributions received, the Commission intends to draw conclusions and, where appropriate, submit concrete initiatives.
Interested parties are invited to send their replies to the questions set out in the Green Paper or any additional comments by mail to the following address:
European Commission
"Green Paper on PPPs and Community law on public procurement and concessions"
C 100 2/005
B-1049 Brussels
Or by e-mail to the following address:
To keep interested parties informed, contributions received by e-mail and details of the senders will be put on the Green Paper website (available at http://europa.eu.int/comm/internal_market/ppp), provided that the senders concerned have not expressed any objections to publication.
Background
Public private partnerships (PPPs) are forms of cooperation between public authorities and the world of business which aim to meet needs in the general interest. They result in the setting up of complex legal and financial arrangements involving private operators and public authorities carrying out infrastructure projects or services of use to the public. These partnerships have been developed in several areas of the public sector and are widely used within the EU to ensure the provision of services, in particular in the areas of transport, public health, education, public safety, waste management and water distribution.
Various factors explain the increased recourse to PPPs. In view of the budget constraints confronting Member States, it meets a need for private funding for the public sector. Another explanation is the desire to benefit more in public life from the know-how and working methods of the private sector. The development of PPPs is also part of the more general change in the role of the state in the economy which is moving from a role of direct operator to one of organiser, regulator and controller.
The full text of the Green Paper is available at the following address: