Full text 
Procedure : 2006/2043(INI)
Document stages in plenary
Document selected : A6-0363/2006

Texts tabled :


Debates :

PV 25/10/2006 - 17
CRE 25/10/2006 - 17

Votes :

PV 26/10/2006 - 6.13
CRE 26/10/2006 - 6.13
Explanations of votes

Texts adopted :


Verbatim report of proceedings
Wednesday, 25 October 2006 - Strasbourg OJ edition

17. Public-private partnerships (debate)

  President. The next item is the report by Mrs Weiler, on behalf of the Committee on the Internal Market and Consumer Protection, on public-private partnerships and Community law on public procurement and concessions [2006/2043(INI)] (A6-0363/2006).


  Barbara Weiler (PSE), rapporteur. – (DE) Mr President, Commissioner, ladies and gentlemen, I would like to start by expressing my gratitude to the representatives of the other groups – Mrs Cederschiöld, Mr Lambsdorff, Mrs Rühle – and also to the representatives of the Committee on Economic and Monetary Affairs, who had a hand in the production of this report, for we were able to exchange views in a constructive and fair way, and managed, in any case, to achieve agreement on over 140 amendments in committee, so that there remain only 23 to be considered today or tomorrow, although it has to be said that compromises had to be reached in respect of them too.

We have tried to strike a balance between two powerful opposing parties – the business associations and the local government associations – which put forward their no doubt legitimate interests in a forceful manner.

What I have to say at the beginning of my speech I wish to address to them. What I want to say to the businessmen is that, despite all that we have heard, I want to make it clear that we in this House take it as self-evident that local authorities should engage in economic activity, and, indeed, that returning certain activities to them is reasonable and legitimate. What I would like to say to the local authorities is that invitations to tender, whether at the national or European level, do not absolutely have to be arbitrary, but offer the transparency that is needed to benefit the public and prevent corruption. I get the impression from the debate that their respective associations did not always see it that way.

I have attempted, by means of my report, to strike a balance that would secure more guaranteed competition for the private sector and would give the public sector, in the shape of the local authorities, more scope for inter-municipal cooperation.

Tomorrow, then, we will be deciding where this House stands as regards future mandates for action by the Commission, which – or so my group believes – should, wherever possible, be in the form of legislation. What this is about is the legal and political aspects of the way in which our municipalities organise services of general public interest. That they do, of course, in accordance with the principle of subsidiarity, which we here in this House also take very seriously; after all, many Members of this House have strong links with local authorities, having been active in municipal politics before they came here.

We are also, though, asked how we, as the convinced Europeans that we are, would shape the internal market, and there is a plethora of rulings from the European Court of Justice and from other courts at the national level. Complaints and Commission proceedings make municipalities and investors nervous about making investments at home and initiating projects, and so it is necessary for the European Union to take action.

What, for example, is the substance of European procurement law? What clarifications or additions need to be made to the institutionalised PPPs and in-house transactions? We see ourselves as having the vitally important function of considering how to proceed. My group takes the view that legislation is needed, that it is not enough for the Commission, attempting as it does so to bypass this House, to act by handing down interpretive communications or other instruments of that kind.

I therefore once more appeal today to the Members of this House, when they vote by roll-call tomorrow, to cast a vote for this House’s right to govern its own affairs. We want neither a great laborious enterprise, nor an opening-up of the last procurement directive, which was not transposed in all the Member States – it was not, for example, in Germany – but what we want to see is clarifications and additions, and they must not be made without reference to Parliament.

I will be quite frank in saying that we have no solution to the problem of inter-communal cooperation, which was – as you will see from the amendments – the most controversial area. The line we take is that it cannot, as a general rule, be excluded from the scope of procurement law, but nor should it be subject to general tender. What that means is that we need an intelligent solution to this bone of contention, for intercommunal cooperation makes sense for the communities from which we come, and will certainly be useful to them in the future.

That this House is supportive of this instrument is shown not least by our willingness to use money from the Structural Funds for it; I am sure that it is not common knowledge just how much effort we have put into getting that.

Given our sympathy for European local authorities and the expertise of my fellow-Members on the Committees for the Internal Market and Consumer Protection and on Economic and Monetary Affairs, I am convinced that we will end up with a law that everyone can support and accept, and one that will be proof against rulings from the European Court of Justice.


  Jacques Barrot, Vice-President of the Commission. (FR) Mr President, Mrs Weiler, ladies and gentlemen, as you know, public-private partnerships (PPPs) have been put in place in several areas of the public sector and these partnerships are gradually developing within the European Union. At a time when public budgets are limited, there can be no doubt as to their importance for the European economy. This is particularly true in the area of infrastructure, and especially in that of transport infrastructure, with which I am very familiar.

In order to guarantee that these partnerships are totally effective and that public money is spent better, it is important to choose private partners on the basis of fair competition. Thus, the choice of private partner must be the result of a competitive and non-discriminatory procedure and must enable the partners to get all of the added value out of such a partnership in the long term. However, many interested parties believe that the regulatory framework that governs which private partners are selected to create these partnerships at Community level is incomplete or unclear.

Mrs Weiler’s report presents a balanced assessment of the main challenges that we must take up. You have provided some good answers to the problems presented, Mrs Weiler, and I should like to thank you for your work as rapporteur.

Allow me to mention what are, in our opinion, two crucial aspects, which I should like to cover before tomorrow’s vote. I shall begin by talking about concessions and then about mixed public-private companies, which are referred to as ‘institutionalised PPPs’.

Firstly, concessions: a concession gives a company the right to use facilities that have been built or services that have been provided in return for building infrastructure or providing a service. The construction and maintenance of roads and airports and waste management are two such examples. In November 2005 – a year ago – the Commission outlined in its communication the reasons why it thinks it useful to legislate on concessions, particularly on service concessions. The aim of this initiative is to guarantee equal treatment and legal certainty in relation to the granting of service concessions – as is the case for public contracts – while making a clear distinction between public contracts and concessions. In this regard, I am sure that Parliament will confirm the opinion of the Committee on the Internal Market and Consumer Protection. It remains very clear, however, that the choice of the legislative path should not deprive the public authorities of the room for manoeuvre that they need in order to choose the best private partner and, if necessary, to adjust the concession over time, in line with the objectives targeted by the partnership for the long-term future of the PPP.

Having said that, a step by step approach is called for. To begin with, the Commission will look more closely at the costs and benefits of a binding initiative on the granting of concessions and will examine other measures that will enable us to deal with the problems at stake.

On the basis of the results of this impact study, the Commission will then – most probably next year – decide whether the cost-benefit ratio warrants such a legislative initiative. If it does, then we will prepare a legislative proposal. That is what I wanted to say about concessions.

We now come to mixed capital companies, namely institutionalised PPPs. Public bodies are increasingly choosing private partners for public service companies set up in conjunction with the public sector. This is what we call institutionalised public-private partnerships. This type of partnership raises some specific questions: should the Community non-discrimination principles be applied to the choice of private partner, as the service provider's fellow shareholder, to the choice of service provider, or indeed to both these levels?

This question has given rise to some lively debates in Parliament. The main issue is actually whether we should create a new set of rules or whether we should simply make the existing legislation clearer so that we can deal with the problems that arise. The Commission has expressed a preference: for the time being, it does not want to draft new legislation on the matter, and this is for two reasons.

Firstly, in most of the Member States, the creation of public-private entities for the purposes of providing services of general economic interest is an altogether new and very innovative opportunity. Non-binding clarifications in this area would enable us to provide the necessary guidelines, without stifling innovation.

Secondly, in 2004, after several years of intense debates, Parliament, the 15 Member States at that time and the Commission reached a compromise and adopted the current directives on public contracts. Many Member States only implemented these directives this year, and some are working towards implementing them. In order to legislate on mixed public-private partnerships, we need to review the 2004 compromise, renegotiate a new text with 27 – and no longer 15 – Member States and, in the event that a new compromise is reached, once again force the Member States to amend their national laws and their practices in relation to public contracts, even though the current rules are not yet well established. That is why we think that it is better, at this stage, to choose a non-legislative path, just as most of the interested parties are requesting.

That is the point that I wanted to make on behalf of my colleague, Mr McCreevy, but you would be right in thinking that the Commissioner for Transport is also very much affected by these provisions. I am now going to listen carefully to the various speeches made by the MEPs.


  Werner Langen (PPE-DE), draftsman of the opinion of the Committee on Economic and Monetary Affairs. – (DE) Mr President, much as I would like one quarter of the Commissioner’s speaking time to explain the position of the Committee on Economic and Monetary Affairs, the unfortunate fact is that I am not going to get it, but I am very grateful for the clear explanations that have been given today, particularly to the rapporteur, Mrs Weiler, who has done something that is not customary in this House by accepting essential points from the proposal of the Committee on Economic and Monetary Affairs in the course of the enhanced cooperation procedure.

We all agree on the line we take, although we do have our differences about such things as paragraph 5, which Mrs Weiler has reinserted by way of Amendment 20. In the event of a legislative declaration, we will handle it by way of the codecision procedure, as provided for by Article 251. This was a typical case for the Committee on Economic and Monetary Affairs, in which we found the exact wording only after a vote during which we had sought out a compromise. We should do things the other way round, and then there will be no differences after the vote either.

In accordance with the position that the Committee on Economic and Monetary Affairs has adopted, I would opt for Mrs Weiler’s Amendment 21, and my personal view is that we should incorporate this amendment, which envisages the possibility of these criteria being incorporated into Community law, and is therefore preferable to Amendment 20.

I believe that we would be doing the right thing by sticking to our line according to which there would be no new areas excluded from the tendering procedure, with the alternative route of supra-regional communal undertakings being cut off, and no extension being permitted to in-house businesses. We would, however, like the Commission to clarify the issues thrown up by the ruling in the case of the City of Halle, among other rulings from the ECJ.

What we want, then, Commissioner, is not only a proposal for concessions, but also clarification of the outstanding legal issues relating to institutionalised public-private partnerships. You, Commissioner, have told us where you stand. That was clear – laudably so by the standards of a Commission that has again and again avoided taking a decision in recent years – and so we will find an agreed solution that will enable us to move on.

As I finish, I would like once more to thank Mrs Weiler for having done everything she could to achieve an across-the-board position, one that will enable us not only to withstand the rulings of the ECJ, but also to stand firm in the vigorous debates with the associations representing various interests.




  Paolo Costa (ALDE), draftsman of the opinion of the Committee on Transport and Tourism. – (IT) Mr President, ladies and gentlemen, the majority of the experiences of public-private partnerships in Europe concerns the construction and management of infrastructure and transport and logistics services. In addition, public-private partnerships are perhaps the only way that private investment can be involved in creating this infrastructure.

For this reason I would like to raise just two points. Firstly, as stated in the report, we need a legislative initiative on concessions, including concessions for construction and management. There is a real need for legal certainty and for defining relations between public concessionary authorities and private concessionaires. On the one hand, private concessionaires need to have the guarantee that contracts will be respected for as long as they are in force, and, on the other hand, the concessionary authorities must be able to rely on having fixed- or limited-term contracts, which can then be adapted to production conditions over time and put to the test of competition. These are the two pivotal points on which I hope that the proposed legislation in question will be based.

Secondly, there is a need to encourage new forms of innovative financial engineering, such as the guarantee funds already provided for by the regulation on the funding of trans-European transport networks, so that they can be used as leverage and ensure that many more public-private partnerships also prove to be efficient and effective funding instruments for infrastructure which we all need and with which I am sure you are very familiar, Commissioner.


  Grażyna Staniszewska (ALDE), draftsman of the opinion of the Committee on Regional Development. – (PL) Mr President, we are always complaining about the Member States’ refusal to countenance even the slightest increase in their contribution to the Community’s budget, and we are always saying that there is not enough money available to even out the regional differences in development and that Europe is developing too slowly. We ought, therefore, to support the use of private money and know-how to promote development, instead of creating obstacles and difficulties. The European Union should give absolute priority to the widespread dissemination of good practice in the area of public-private partnerships. That is the bare minimum. At the very least, the Union should invest in an Internet site, in the 20 official Community languages, which would be accessible to the general public. Such a site would contain a description of the PPP system and its effects. It would also provide examples of model PPP projects, enabling every municipality in Europe to have easy access to accounts of successful experiences. This would allow municipalities to learn from the past and to make use of that knowledge as they plan their own way forward. I call on the European Commission to request such publicly accessible information from the European Investment Bank. The EIB is currently preparing a purely internal, intergovernmental information system on PPPs that would not be accessible to the public in the Member States. This is unacceptable.


  Charlotte Cederschiöld, on behalf of the PPE-DE Group. (SV) Mr President, Commissioner, we are concerned here with a response to the Commission Green Paper on public-private partnerships, designed to investigate points that remain unclear, especially in what is known as the in-house area. We are, however, all agreed that, as the Commissioner so wisely said, there is no need to tear up existing legislation on public procurement. Public-private cooperation must favour competition and, above all, contribute to new thinking and increased efficiency within the public sector.

The Commission must now solve the problem – that being the aim – without legislating more than is necessary. We do not, however, have closed minds on this point and, just as Mr Langen said, we thus support Amendment 21 by Mrs Weiler.

We have made a request for legislation on concessions, and the Commission has responded positively and quickly to this. We are agreed about respecting the threshold values and about the need for normal legal principles to apply beneath those values where public procurement is not a requirement. We do not wish to reduce the scope for public procurement. Moreover, we unambiguously call on the Commission to propose solutions to the problems that exist in Germany, France and other countries when it comes to cooperation between local authorities, but not to forget less wealthy local authorities that wish to cooperate in sparsely populated areas in Member States such as Finland and Sweden.

If the Commission were not to carry out this task, it could no doubt expect heavy pressure to be placed on it by Parliament. I am convinced that the Commission will do an excellent job of fulfilling this task, and we wish to give it time to consider our views on the Green Paper and to come up with proposals. All the parties concerned should be involved in the continued process. The committee can certainly be of help in increasing the level of knowledge in this difficult area.

Paragraphs 45 to 47 already guarantee more legal certainty and show that local authorities can cooperate. In the future, we shall also have a clearer and more detailed view of how things are to work.

In conclusion, I wish sincerely to say a big thank you to Mrs Weiler for the splendid work she has done, as well as to the great many other people who have been involved. Thank you very much. We are obtaining a more competitive Europe with greater legal certainty.


  Gilles Savary, on behalf of the PSE Group. – (FR) Mr President, allow me first of all to thank all of my fellow Members, and in particular Mrs Weiler and Mr Langen, with whom we have done an outstanding piece of work. Let us hope that the text will be adopted tomorrow. It is quite simply a question of protecting the exercise of subsidiarity for PPPs, instruments that are very familiar to our local authorities, and have been for a great many years.

I welcome the fact that the Commission plans to legislate on concessions, which have been mixed up for too long with public contracts. However, I shall state in this Chamber that I believe that legislation is also required for institutional public-private partnerships. It is wrong to say that these are recent entities: semi-public companies have been around since 1955 in France and the Stadtwerke have been around for a very long time in Germany.

The fact is that subjecting them to two forms of competition today means putting an end to them. What private partner would agree to work with a local authority that makes it compete twice over? Furthermore, I would draw the Commissioner’s attention to the risk run by inter-communal structures, which are in danger of being mixed up with private structures even though they are an entirely public means of organisation for local authorities that aspire to be large enough to be able to fulfil increasingly demanding obligations and public-service missions.


  Alexander Lambsdorff, on behalf of the ALDE Group. (DE) Mr President, ladies and gentlemen, public procurement is of crucial importance in terms of budget and competition policy – on that we all agree.

Competitive tendering is a fit and proper way of determining the most economic way of providing public services, and, over and above that, mandatory Europe-wide tendering does something essential in terms of opening up the internal market to competition.

As rapporteur, Mrs Weiler has done a fine job of steering us, together, through the public procurement dossier – which is a difficult one – in an exemplary way. It is thanks to her that we in the Committee on the Internal Market and Consumer Protection have already managed to come up with plenty of workable compromises, so it is only right that we should take this opportunity to express our gratitude and particular appreciation to her, and both I and the other Members involved are certainly willing to do that.

I have advised my group to hold fast to what has emerged from this vote, and wish only to say something about the few contentious points. In so doing, let me start with institutionalised public/private partnerships, which are a relatively recent phenomenon, the development of which should not be unduly restricted by legal regulation, and it became clear from the public consultation that people do not want it to be.

I therefore recommend that we go no further than an interpretative communication and guidelines that are comprehensible not only by lawyers but also by those who take decisions at the municipal level, which will not only afford greater flexibility than does legislation, but also – and above all – hold out the prospect of a rapid resolution to the legal uncertainties that are very definitely still there. This is where the Commission needs to act as promptly as possible.

Moving on to inter-municipal cooperation, the second contentious point, I believe it to be self-evident that the municipalities should not in any way be hampered in their management of their own affairs, but equally self-evident, too, that this cannot mean that public/private partnerships should be generally exempted from the obligation to put work out to tender.

Although public authorities are not obliged to hand over to third parties the performance of functions for which a market exists, should they decide to entrust third parties with the performance of a service, they must be bound by a public tendering process, as is indeed clear from Article 295 of the European Communities Treaty, which requires neutrality in the application of internal market rules to public and private undertakings. That, by the same token, makes cooperation between municipalities possible in principle, albeit subject to the restrictions that are so well stated in what is now paragraph 45 of the Weiler report, namely when cooperation between municipalities is for the purpose of administrative restructuring or where real in-house monitoring is provided for.

Perhaps I might be permitted to add something as I close, namely that people in Europe have had very varying experiences of public/private partnerships, and so I am certainly very glad to see that a start is to be made on an exchange of good practice, which will bring in its train more good examples of working PPPs.

I might also add that I believe we should be conducting this debate in Brussels rather than in Strasbourg.


  Heide Rühle, on behalf of the Verts/ALE Group. – (DE) Mr President, I, too, wish to thank the rapporteur for her efforts, even though our group is rather less than satisfied with the final result that emerged from the committee, as a result of which I would like, this evening, to appeal to you all to rethink your position, even if only in part.

It is intercommunal cooperation, in the shape of intercommunal undertakings, that we see as the most important point, and I would like once more to make it clear – not least in response to those who have already spoken – that they have nothing whatever to do with the devolution of functions to third parties, but have to do rather with the municipalities deciding to perform services for the community. It is lack of funds in public coffers and an ageing and numerically declining population – particularly in rural boroughs – not to mention greater critical awareness of the issues and the costs involved on the part of the public, that makes this form of cooperation the best for many local authorities in Europe, and often the only way available to them of modernising the services they provide. So it is, then, that administrative services, water supply and drainage, playschools, schools and many cultural amenities are operated jointly, sometimes, indeed, across borders, examples of which can be found in the pre-school projects run together by French and German communities. Europe should not be putting this sort of thing at risk, but rather enhancing it, so let me therefore commend to the House’s support our Amendment 45, which is a compromise put together by Members from various groups, and which I hope will gain majority support tomorrow.

My second point has to do with concessions. I dare say that I am more sceptical about public-private partnerships than are most of you, but I do, all the same, think it wrong to send out the message that public-private partnerships are being promoted and then demand that concessions be put out to tender in the same way as contracts, the performance of which was, of course, the basic rationale for the PPPs being set up in the first place. I do not believe it is merely fortuitous that Parliament and the Council did not explicitly include concessions for services in the directive on the award of contracts, and I hope we will come to agree that what we do not want here is a requirement that they be put out to tender in the same way as contracts. Services concessions are something different and need to be regulated in a different way.

As for ‘in-house’, what the European legislator really should have done about this was to clarify the conditions. I do not regard a figure of 100% as sustainable. What is needed, I think, is threshold values, and high ones at that, which must then actually be complied with. It is, though, the legislators that should define them and not the ECJ.


  Zita Pleštinská (PPE-DE). – (SK) Even though there is no uniform definition of public-private partnership (PPP) that would apply throughout the Community, a large number of projects have been successfully implemented in the European Union’s freight and passenger railway transport sectors, as well as in the area of public health and education.

These successful projects provide sufficient justification for Parliament to take up the topic as well, and I welcome the Commission’s communication on PPPs, which includes specific proposals drawn up on the basis of public consultation. At the same time I would like to congratulate the rapporteur, Mrs Weiler, on her well balanced report highlighting the need for legal certainty in this area.

Under PPP arrangements, private enterprises transfer their know-how to the public sector. In my amendments, which have been incorporated into the report, I have therefore emphasised the need for establishing transparent mechanisms for private investors. Investors should be given guarantees that their legal and financial interests will be safeguarded for the life of a contract and also that the terms and conditions of public tenders will remain unchanged during their period of applicability.

Due to lack of experience, the new Member States in particular are apprehensive of using PPPs. Information gathered from the implementation of successful projects will help them to avoid repeating errors and procedures that have in practice ended in failure.

I am convinced that PPP projects will be able to attract the desired capital only if the interested parties within EU Member States are well informed and conform to the quality regulations and transparent rules of the Community. These regulations and rules will help them build up infrastructure, the development of which has lagged behind due to underfunding. This form of cooperation may also prove instrumental in helping bridge regional disparities and ensuring the sustainable development of Europe’s poorer regions.


  Evelyne Gebhardt (PSE).(DE) Mr President, I regard institutionalised public/private partnerships as a very important tool. The legal uncertainty resulting from the ruling of the European Court of Justice on the case of the city of Halle shows just how necessary it is that legislators should do something about them, and it is surely not acceptable that the Commission should act without reference to anyone else in giving guidance as to the manner in which this problem should be addressed. On the contrary, it is for the co-legislators, namely the European Parliament, the Council, and the Commission together, to reach a joint decision as to how we in Europe are to deal with these issues.

The second point I would like to address briefly is inter-municipal cooperation, and this is where I have to disagree with Mr Lambsdorff, for it has been going on for a very long time; there is a very long tradition of it, not least in the Federal Republic of Germany, and it is something we should maintain. Cross-border inter-municipal cooperation is at present a delicate shoot, and one that we must not destroy by declaring that these things should be left to the free market. If they are, we can pack it all in on the spot, for we will have no further need of municipalities, and that is surely not the sort of Europe that we want to see.


  Ieke van den Burg (PSE). – (NL) Mr President, I was particularly involved in this report in the Committee on Economic and Monetary Affairs, where Mr Langen was rapporteur, and I would congratulate both rapporteurs on the final result, although it is true that a certain amount is left to be desired.

There is, as I see it, a clear correlation with the discussion we had about the services of general economic interest, on which we took a decision in the previous plenary part-session. In both cases, it was about the way in which decentralised authorities, service providers and citizens can be given more legal certainty, which can sometimes create conflict between the internal market rules, on the one hand, and the general interest which authorities need to serve on behalf of their citizens, on the other.

It is often the case that the Court of Justice has to be called upon or that the Commission gives interpretations of its own. The important message in both those files has been that we, via the codecision procedure, really want to take political decisions in this area, and that it is also important that we ask the Commission, and really insist on this, to present legislative initiatives on which we can decide in codecision with this House and with the Member States and their parliaments. That is the principal message I should once again like to take to the Commission in connection with this report.


  Donata Gottardi (PSE).(IT) Mr President, ladies and gentlemen, the subject of public-private partnerships has for some time been part of the new boundaries of welfare state systems within the European Union. Its significance should be seen from a new perspective, through the interconnections with all the initiatives on which our services rely.

The common objective, which has been reaffirmed many times, including today, is to create a complete and clear legal framework within which local public authorities can make their own choices, aware of opportunities and constraints, principles to be respected and possible areas of freedom and innovation.

In the text on which we are voting, overlapping is apparent with the current regulations in the field of contracts, concessions and joint enterprises, and with the European Court of Justice guidelines. However, the added value lies in the cross-cutting focus on the various ways in which alliances between the public and private sectors are built in the extremely sensitive field of services involving citizenship rights.

Two firm principles are needed. Cut-backs on spending cannot come before or relax the requirements of service quality and safeguards for the rights of service providers. The search for efficiency and innovation must be tied to guarantees of accessibility, transparency and non-discrimination. This year has seen many initiatives in the field of services. The hope is that, working on elements of various scales, we will be able to build a coherent scheme.


  Bernadette Vergnaud (PSE).(FR) Mr President, Commissioner, ladies and gentlemen, Mrs Weiler’s report provides the clarity and transparency that we needed in relation to public-private partnerships, and thus allows us to change the wayward paths taken by the European courts and to improve the legal clarification for all of the actors concerned. Concessions are all too often mixed up with public contracts: the latter concern the purchase of goods consumed by local authorities, while concessions offer public authorities the opportunity to delegate the completion of part of their tasks to a third party. Therefore, we should have a law on these concessions and not a mere interpretative communication.

The same is true of institutionalised PPPs. Their creation is currently being threatened by the rigours of case-law, which tends towards having two calls for competition when allocating work, something that is likely to seal the fate of semi-public companies. I am therefore grateful to our rapporteur for having requested a legislative initiative on this subject.

Finally, in the Commission versus Spain judgment, the inter-communal structure has become a private partner for the Court of Justice. Authorities should therefore make inter-communal structures to which they delegate the provision of services compete with each other. Mrs Weiler is re-establishing the law and offering us the best parliamentary contribution on this subject, and for that I thank her.


  Jacques Barrot, Vice-President of the Commission. (FR) Mr President, I should like once again to thank Mrs Weiler, as well as the draftsmen of the opinion of various committees: Mr Langen, Mr Costa and Mrs Staniszewska.

I am going to try to respond to some of the questions asked, without claiming to respond to them all. I shall first respond to Mrs Cederschiöld, to Mr Lambsdorff and to Mrs Rühle. When a local authority grants certain services to another public body in return for payment, these are in principle services that have been the subject of a public contract. The public body benefiting from the contract is competing with private companies and possibly with other public bodies offering the same service. A general exclusion of all forms of public-public cooperation from the scope of the Community rules on public contracts and of the rules on concessions would therefore be unacceptable. The Court of Justice case-law is very clear in this regard. Conversely, not all forms of public-public cooperation are covered by Community law. The Commission recognises that clarification is required in order to determine the extent to which Community law applies to the delegation of tasks to public bodies and which forms of cooperation remain outside the scope of the provisions on the internal market. We are working closely with all the parties concerned in order to provide this clarification.

Next, I shall respond to Mrs Rühle and to Mrs Gebhardt on the issue of public-private partnerships and on the ‘in-house’ concept. The ‘in-house’ concept excludes the application of the rules governing public contracts when a public body grants a contract or a concession to a third party over which it exercises some control. The Court has outlined the circumstances in which this derogation may be applied. You will understand that the Commission wants this exception to the rules on granting contracts to continue being monitored. In particular, it seems extremely doubtful that a public contract or a concession would be granted in a discriminatory way to a company that represents certain private interests, while other private companies concerned are pushed aside. That is why we think it necessary at this stage to keep to the current definition of the conditions for application of the ‘in-house’ system: where authorities exercise the same control over the service provider as they do over their own services, and where service providers carry out the bulk of their activities with the authority concerned. For these reasons and also so as not to have to start from scratch with the new public contract rules, which are scarcely at the transposition stage in the Member States, we think it appropriate to legislate on mixed public-private companies and on the ‘in-house’ concept. An interpretative communication is the most suitable means of explaining the way in which the rules regulating public contracts apply to the selection of private partners for these partnerships.

In response to Mr Savary, who raised the question about the two calls for competition, I would say that we are aware of this problem and, as you pointed out, I referred to this in my speech. I should like to make myself very clear: we do not require two calls for competition simply because we believe that that is unnecessary. We explained this in the 2004 Green Paper on PPPs and we plan to clarify our position in the texts that we are due to present in 2007.

Mr President, I am well aware that I have not responded to all of the questions asked, but I should like now to conclude.

On the subject of concessions and of a possible legislative initiative, it is important not to rush things. To begin with, the Commission must look more closely at the costs and benefits of a binding initiative on the granting of concessions, and at other measures suitable for dealing with the problems at stake. On the basis of the results of this impact study, the Commission will then – most probably next year – decide whether the cost-benefit ratio warrants such a legislative initiative and will, if necessary, prepare a legislative proposal.

Furthermore, the message from all those who work in the area of PPP start-ups is clear: they are calling for practical guidelines on the way in which to apply the rules on public contracts to the creation of these partnerships. The Commission intends to provide these guidelines in non-legislative form for the reasons that I indicated in my introduction.

There can be no doubt as to the importance of PPPs for the European economy. I hope that Parliament’s report will help clarify the Community rules on public contracts and concessions so as to offer partners transparent and fair conditions of competition. It has become quite clear to us, in this debate, that Parliament's emphasis was on legal certainty, but you, for your part, will have also understood the Commission's preoccupation, in an area as vital as this for European investment, with retaining some room for manoeuvre, such as to enable it, while guaranteeing legal certainty, to invest more money where it is really needed. Moreover, several of you rightly stressed that these are absolutely vital tools.

Mr President, those are the answers that I wanted to give, and I thank Parliament once again for the quality of this debate.


  President. The debate is closed.

The vote will take place on Thursday at 11.30 a.m.

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