Volume che esamina in modo profondo il fenomeno del partenariato pubblico privato attraverso una prospettiva globale e teorica. Gli Autori valutano i motivi dell'unione tra entità private e pubblica amministrazione, nonché i processi e le conseguenze di questo tipo di legame. Sono trattati e discussi anche i benefici per la comunità e i cambiamenti radicali nei principi e modalità di ammnistrazione.
The book analyses how PPP contracts may have a limited impact on the government deficit under EU law.
Under the fiscal discipline of the European Union, the government debt and the government deficit of the Member States are strictly limited. However, PPP can act as a flexible mechanism to the European fiscal discipline. Under European law (ESA 2010 - European System of Accounts 2010), the impact on the Government deficit of the total amounts paid by the government in PPP is significantly reduced (so called off balance sheet treatment of the PPP). However, in order to achieve that reduced impact on the government deficit, EU law is requiring a rigorous allocation of risks in PPP contracts.
The book presents, with a step by step approach, the details of the allocation of risks required by ESA 2010. The author comments and analyzes the guidelines and case law of Eurostat since 2004. The author is also studying ESA 2010 in comparison with the EU law on public procurement and concession. The author is finally questioning the hidden deficit related to the development of the practice of off balance sheet PPP in the EU.
The book, published in August 2018, is based on the doctoral thesis of the author, Dr. Kim Eric Möric.
Annually, the government commits significant expenditure to a type of public contracts which are known as Public-Private Partnerships (PPPs) or the Private Finance Initiative (PFI). These contracts bind the public purse for decades in sectors such as Health, Defence and Detention, and involve the assignment of a significant role to the private sector in the provision of public services. This book explores the controversial subject of the public accountability of these contracts, and the corresponding large sums of public money involved. It explains how public accountability works for PPPs and the PFI, and it argues that it should be provided as part of the Economic Constitution. Drawing comparative understandings from the UK and the USA constitutional legal traditions, the book investigates public accountability from the perspective of the Economic Constitution, focusing on three accountability criteria - legal, accounting and administrative. In doing so, it provides an analysis which informs both from the perspective of academic research and from that of legal and consulting practice.
Public procurement in the European Union represents almost twelve per cent of the EU's GDP and is continuing to increase, having been identified as a key objective in the EU's aim to become the most competitive economy in the world by 2010. The book provides a multi-disciplinary approach to public procurement and will be of use to academics and policy-makers. Providing its readers with practical description and analysis of the relevant policies, law and jurisprudence, the book also explores possible future trends in public procurement regulation.
The judgement in question clarifies the legal nature of the town-planning agreement concerning the execution of a recovery plan, which in this case was stipulated between the plaintiff and the Municipality of Campobasso. The Court while stating that the agreement, as a partnership tool, “realizes on one side the private’s interest in a building, and on the other, once authorised by the local authority, allows the territory’s conformation through the construction of goods and infrastructures that benefit the community”, also highlights – although in a perspective that is still strongly linked to the traditional categories of the administrative actions – how the pivotal element of a partnership is the public interest that “brings together the manifestation of public powers by merging the discretionary content of the provision with civil right tools concerning the negotiating autonomy, in a procedure that is not exclusively public that blends with the private’s initiative, to which the administrative provision is linked”.
The case in question arises from a first appeal made by the plaintiff, a company which provides instruments to regulate road traffic and to detect of infringement of traffic rules, by challenging the call for tender and other tender documents with which the Province of Varese had launched a project finance procedure for the awarding of the installation, rent and maintenance services of instruments that detect infringement of traffic rules and related performances. The Province and the proposer company entered an appearance. Afterwards, the provincial administration annulled in self-defence the acts of the above mentioned project finance procedure through the decision of the President of the Province and a subsequent executive determination. The ground of the annulment focused on the fact that the proposed service cannot be included in the ambit of service concession nor in the one of partnership, since it is a service contract. As a consequence, the proposer company appealed in turn for the annulment of those decisions. The Province and the plaintiff in the first appeal entered an appearance for the appeal to be rejected. The Administration sustained that, in this case, in the contractual scheme proposed by the company a type of “operational risk” as required by law cannot be identified. The private operator’s activity was not subject to risks nor “market changes”: the payment of a fixed monthly charge in favour of the operator was expected, other than the payment of the software license of the tender management system and a percentage of the amount collected through the financial penalties inflicted to users. The Court believed that the case in point cannot be included within the ambit of partnership, since the type of risks ex art. 180 par. 3, namely demand, construction and availability risks, was lacking. It has thus rejected the appeal and declared this to be a service contract. The Court has also rejected the claim for compensation submitted by the plaintiff, following the path of the administrative case law, by sustaining the groundlessness of the civil liability in the project finance hypothesis, since there is not a pre-contractual duty with reference to the positive evaluation of the PPP proposal.
Project Finance - Rejection of the proposal - Unequal treatment
National Audit Office - HM Treasury
www.nao.org.uk
18 Gennaio 2018
Relazione del Dipartimento del Tesoro britannico pubblicata il 18 gennaio 2018 e supervisionata dall’Auditor General e dal Comptroller, i quali certificano la contabilità di tutti i dipartimenti governativi e di altri organi pubblici. Nella prima parte di questa relazione sono presentate le informazioni riguardanti i costi e benefici delle Iniziative di Finanziamento Privato (PFI), nella seconda sono descritti gli impatti del PFI e la capacità di risparmiare attraverso i contratti operativi; mentre nella terza parte sono introdotti i PF2.
Abstract:
The French Council of State has annulled the deliberation of the city council that was authorizing the Major of Bordeaux to sing a public-private partnership contract for the planning, construction and maintenance of the new Stadium of Bordeaux, since the economic framework resulted more expensive for the Administration than what estimated. The ratio of the use of the organizational model of partnership is based on the best result possible for the public sector, with particular attention given also to the optimization of the costs for the public administration.
Interesting paper written by Esther Nkelani, EAPPP's trainee, on the importance of PPP as a complementary modality to improve the financial development of African Countries.
This paper analyzes how energy efficiency could be positively pursued through virtuous PPP policies. After a clarification of the concepts of EE and PPP, the paper discusses the relevant international, European and Italian legal framework. Subsequently, Energy Service Companies are discussed to reveal whether they could positively be involved in energy efficiency or their drawbacks impede them from being considered a solution to play a role in EE game. Lastly, the elements of Municipality of Milan’s project are examined.
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This collection examines public-private partnerships (PPPs) in transitional nations from the governance perspective. It explores the structures, legal frameworks and collaborative arrangements that underpin partnerships in Europe, Asia and Africa, and highlights government decisions that facilitate the transformation of societal challenges into developmental opportunities. By sharing the experience of nine nations, including China, Indonesia, Russia and Nigeria, it helps to better understand the commonalities in PPP deployment, avoid mistakes and pitfalls, and learn from other economies.
The book raises the critical questions that concern many governments, including: What are the common and frequent mistakes that governments make when they deploy partnerships and deal with governance issues? How can countries increase PPPs’ benefits? Can PPPs be instrumental in accomplishing certain less traditional government tasks, such as disaster risk management of built infrastructure and promotion of clean energy? Can PPPs serve as a backbone of entrepreneurial networks and contribute to sustainable development? The groundwork is laid out for contrasting and comparing successful and unsuccessful government actions, institutional, legal and financing initiatives and procedures, allowing one to make cross-country and cross-sectoral comparisons.
Public–private partnerships (PPPs) play an increasingly prominent role in addressing global development challenges. United Nations agencies and other organizations are relying on PPPs to improve global health, facilitate access to scientific information, and encourage the diffusion of climate change technologies. For this reason, the 2030 Agenda for Sustainable Development highlights their centrality in the implementation of the Sustainable Development Goals (SDGs). At the same time, the intellectual property dimensions and implications of these efforts remain under-examined. Through selective case studies, the book contributes to a better understanding of the relationships between PPPs and intellectual property considered within a global knowledge governance framework.
In the case in question the Regional Administrative Court of Venice has addressed a dispute concerning the interpretation of a tender regulation’s article on the concession of a public municipal lighting service. The article stated that the “commit to finance the works required by one or more financial institutions” had to be enclosed to the economic offer. The Court has clarified that expressing the interest to finance a work is different from expressing the interest to evaluate the possibility of financing it. In the first case, if the credit institution denies the financing it will be forced to at least set out the reasons for the denial and will have to assume the responsibilities deriving from the action, if said reasons appear to be inconsistent or wrong. This obligation is not present in the second case, in which the Institution will be forced, if it does not see the project, to explain the reason of said omission. In other words, in the first case the protection of the substantial interest (to obtain the financing) is conceivable whereas in the second one only the protection of the instrumental interest (to examine the case and nothing more) can be hypothesized.
The Local Action Group is a legal form of public-private partnership at a local level that operates through the drafting of a Local Action Plan, which is as an ensemble of actions and goals that valorise and develop a specific rural territory. The Local Action Group is a European tool included in the Programme LEADER+, aimed at promoting and strengthening, through financial contributions managed by the Local Action Group itself, the development of the rural areas of a given a territory, as a form of regeneration to stimulate and create new employment. These forms of association aim at involving the social and economic levels in the definition of new territorial agricultural development strategies and could define the guidelines that are then reworked by the Local Development Plans, which are approved by the Region in question and that allow to obtain the financial support of the European Union. Pursuant to article 32 paragraph 2 point b) of the EU Regulation no. 1303/13 the Local Action Groups are composed of “representatives of the local public and private socio-economic interests in which, at a decision-making level, neither public authorities nor any single interest group represent more than 49% of the voting rights”. They should thus be considered as an actual form of public-private partnership.
This model has been particularly exploited in Italy where there are about 192 Local Action Groups – and it has been the subject of interesting case law. In particular, with the ruling of the 24th of January 2018 no. 488, the section III of the Council of State has addressed the topic of the potential classification of the Local Action Groups in terms of public-private partnership, by focusing on the “decision-making level” concept. In this case, the Council of State has confirmed the Lombardy Regional Administrative Court’s decision that rejected the claim of annulment presented by some of the excluded companies of the Executive Decree (Decreto Dirigenziale) concerning the “Lombardy’s Rural development project 2014-2020. In support of the local leader development”, with which the conditions to obtain financing were identified. The Region argued that one of the appellant, since it is a limited company with a single member, was not compliant with article 32 par. 2 point b) of the EU regulation no. 1303/13, which states that the Local Action Group must have a public and private participation, and therefore could not be considered as a real example of PPP. The appellant claimed that the mentioned article should have been read in light of the national provisions of law regulating the company’s bodies, according to which the Local Action Group’s decision-making level concerning the strategies of local development and the projects that must by approved for funding must be identified within the Board of Directors and rather than within the shareholders’ meeting. The appellant’s thesis has been refuted by both the Regional Administrative Court of Lombardy and by the Council of State during the appeal. This latter subject has stated that in a Local Action Group the “decision-making level”, in substantive terms, must be intended as the body that actually decides the local development projects with a collaborative approach that must be approved by the institutions competent for the EU financing, namely – with reference to the case in question – the Shareholders’ Meeting. For these reasons, the Council of State has ruled out that the appealing single-member company could be an example of public-private partnership, since it does not have a public and private associative feature.
Project Finance Proposal - Local Public Transport Service - Compensation for damage
Public services – Energy – Public-Private Partnership – art. Art. 183, par. 15, Legislative Decree no. 50/2016 – Project Finance
Abstract:
The Regional Court of Administrative of Justice of Trento has asserted that any violation of the correctitude duties and good faith is recognizable in case an administration revokes a procedure of project financing after the provisional awarding, on the basis of greater convenience, in financial terms, of procurement procedure in light of the modification of the market conditions and the fluctuation of the interest rates and, more generally, of the financing conditions.
Abstract:
The aim of this article is to analyze the definition of “economical risk” such as a proprium of the concept of concession as defined in the directive 2014/23/UE. In particular, it is developed the hypothesis that this risk should be strictly connected to the unpredictably of the market and therefore it cannot be considered as comprehensive of the so-called “availability risk” intended as a mere respect of determined quality standards.
