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PPP legal framework

PPP legal framework in Poland

 

Polish legal framework for PPP and concessions are defined by the Law of 19 December 2008 on public-private partnership, hereinafter referred to as the "Act on PPP", and the Act of 9 January 2009 on concessions for public works or services, hereinafter referred to as the "Act on Concessions". Notwithstanding the foregoing PPP legal basis in the sector of toll motorways and expressways are regulated by the Act of 27th October 1994 on toll motorways and National Road Fund (i.e., Journal of Laws 2004, No. 256, item 2571, as amended), "Act on Toll Motorways". For selecting of a private partner and conclusion of PPP contracts also the Act of 29 January 2004 Public Procurement Law (Journal of Laws of 2010, No. 113, item 759, as amended), hereinafter referred to as "PPL” shall apply. PPL shall be applied for selecting the private partner if the remuneration of the private partner, in all or most part, will be a payment from budget of the public entity.

 

  • Act on PPP

The Act on PPP regulates the principles of cooperation of public and private partners under PPP, and the content of this cooperation is the joint implementation of projects based on the division of tasks and risks between the public entity and private partner. The public entity will, inter alia, included a central administration body, a local government unit (commune, district, voivodeship), as well as a public company which is under the control of government or local government. The project underlying PPP may involve construction of a building (e.g., a stadium, a hospital), providing of services (e.g. management of water supply and sewerage system), and execution of a work (such as organization of the urban monitoring center) or other performances. What will distinguish PPP from the conventional procurement will be the private partner obligation to maintain (e.g., refurbish, repair) or manage the infrastructure built thereby or entrusted thereto. In practice, most often, the private partner will be required to fund and implement the project, and then manage it (e.g. build a public road and act as a road manager). The public entity will be obligated to make own contribution which will constitute its main involvement in the project.

Source: http://www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/ustawa_PPP_190111.pdf

 

  • Act on Concessions

The Act on Concessions regulates the content and method of concluding of contracts for public works concessions and service concessions. Concession contract lies in the fact that the concessionaire under the concession contract concluded with the licensor undertakes to execute the subject matter of the concession (in the case of building concessions - construction of a new public infrastructure and service concessions - provision of services based on already existing public infrastructure) for an adequate remuneration. The remuneration of the concessionaire will not be a one-time payment of price (as in the traditional public procurement), but the right to use and enjoy the profits from the built infrastructure (public works concession) or provide services and enjoy the profits (service concession). In the case of public works concession, for ex ample, the concessionaire will build a drainage system and will provide sewer service during the time specified in the contract, and in the case of service concessions it only will provide sewerage services, based on the already existing infrastructure (which it will need to maintenance and repairs). The idea of concessions is that the concessionaire conducts an economic activity on the basis of most of the infrastructure being operated, while incurring the risks associated with these activities.

Source: http://www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/ustawa_koncesje_190111.pdf

 

  • Act on Toll Motorways

The Act sets out the conditions for preparation of construction, construction financing, rules for the conduct of a tender for the construction and operation or just operation of toll motorways, rules of conclusion of the construction and operation agreements or just operation of highways, and the authorities competent in these matters.

Source: http://www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/ustawa_autostrady_platne_KFD_190111.pdf

 

  • PPL

PPL defines the rules and procedures for procurement, legal protection measures, control of the public procurement and the authorities competent in the matters regulated by the act.

Source: www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/ustawa_PZP_190111.pdf

 

 

PPP legal framework in the European Union

 

PPP was not regulated under European Union law in form of a secondary law regulation, i.e., the regulation that would legally bind the EU Member States. In the opinion of the European Commission, PPP does not constitute an independent legal institution in the light of the EU law. The EU law treats PPP as a model of cooperation between contracting authorities and contractors, which at the European level requires the use of a competitive and open mode of selection of the contractor, in accordance with the rules on public procurement contracts or concessions. Therefore, under European law PPP is only regulated by so-called "soft law" under:

 

  • Guidelines for successful public-private partnership, the European Commission, Brussels 2003

Intention of authors of the Guidelines was to explain how PPP can integrate into a system of aid granted by the European Commission. The Guidelines, above all, indicated the basic problems and suggest directions for future legal solutions that provide the businesses entities from around the area of EU with an access to public service in the way that respects the freedom of competition arising from the Treaty on the Functioning of the European Union. Simultaneously, they constitute a sui generis guide for public entities on how to conclude and perform contracts under the PPP model.

Source: www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/Wytyczne_Komisji_PPP_190111.pdf

 

  • Green Paper on public-private partnerships and Community law on public contracts and concessions, COM (2004) 327, Brussels 2004

The Green Paper on PPP is a document illustrating the course and outcome of the EU authorities’ debate on the application of EU law on public contracts and concessions under the PPP phenomenon. The Green Paper aims to show which of the EU rules apply to the chase of selection of the private partner and the subsequent stages.

Source: http://www.ppp.gov.pl/Poradnik_inwestora/Documents/ZK_PPP_zamowienia_koncesje_240111.pdf

 

  • The Commission interpretative communication on the application of Community Law on Public Procurement and Concessions in respect to the institutionalized PPP (IPPP), COM (2007) 6661, Brussels 2008

The communication clarifies the legal problems associated with application of the procurement laws regarding setting-up of an institutionalized PPP (mixed capital companies). According to the Communication, any cooperation of the contracting authority with an entity other than the contracting authority, in the form of a mixed capital company does not justify a waver from applying the rules on public procurement and concessions.

Source: http://www.ppp.gov.pl/Poradnik_inwestora/Documents/Komunikat_KE_zamowienia_publicznego_a_PPP_250111.pdf

 

 

Legal framework of concessions in the European Union

 

The public works concession is an institution harmonized in the European Union within the framework of Directive 2004/18/EC of the European Parliament and the Council of 31 March 2004 on the coordination of procedures for the award of public works, supplies and services.

 

  • Directive 2004/18/EC of the European Parliament and the Council of 31 March 2004 on the coordination of procedures for the award of public works, supplies and services contracts.

The provisions of Directive 2004/18/EC define the institution of public works concessions and regulate the rules for awarding such contracts under the assumption of openness, equality, competitiveness and proportionality of the procedures. This directive also defines the institution of service concessions, however, leaving to the EU Member States to regulate the rules of conclusion of the service concession contracts, however, taking into account the principles anticipated in the Treaty on the Functioning of the European Union and the Communication of April 24, 2000 Commission interpretative communication on concessions under Community Law (source: http://www.ppp.gov.pl/Poradnik_inwestora/Documents/Komunikat_Komisji_2000_190111.pdf)

Source: http://www.ppp.gov.pl/Poradnik_inwestora/AktyPrawne/Documents/dyrektywa_2004_18_WE_x190111.pdf

 

  • Case-law of the Court of Justice of the European Union

The Court of Justice ruled in a number of cases, inter alia, on specific characteristics of concession contracts, as well as the boundary between a concession and an ordinary public procurement, i.e., mainly in the following cases: C-324/98 Telaustria Verlags GmbH and Telefonadress GmbH v. Telekom Austria AG, judgment of 7 December 2000, C-358/00 Buchhändler-Vereinigung GmbH v. Saur Verlag GmbH & Co. KG, Die Deutsche Bibliothek, dated 30 May 2002., C-458/08 Parking Brixen GmbH v. Gemeinde Brixen and Stadtwerke Brixen AG, dated 1 March 2005, C-382/05 the EC Commission v. Italian. Republic dated 18 July 2007, C-231/03 Consorzio Aziende Metano (Coname) v. Comune di Cingia de’ Botti dated 21 July 2005.

Source:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0324:EN:HTML

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62000CO0358:EN:HTML

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003CJ0458:EN:HTML

http://dokumenty.e-prawnik.pl/orzecznictwo/unia-europejska/c-38205-komisja-przeciwko-wlochom-strona-3.html

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003CJ0231:PL:HTML

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