Paukku Eelis

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 292 - 300

This article aims to find out how Finnish legislation allows usage of PPPs by local governments. This study was conducted by analysing the main features of PPPs from literature as well as analysing EU and national legislation. The main findings of the study were that the most significant legislation is EU public procurement legislation, which sets a framework on how the public can acquire the skills and problem-solving from the private sector. The procurement method called ‘the competitive dialogue’ has proven to be effective in PPPs. As there are many different forms of PPPs, it is possible that other legislation can create issues with PPPs as well, mainly EU State aid regulation, national, local government regulation, and national competition regulation. As a main result, it can be stated that regulation does not prevent or even hinder the usage of PPPs as long as legal requirements are taken account and markets are not unnecessarily disturbed. Keywords: public-private partnership; PPP; State aid; public procurement; local government regulation; competitive dialogue

Jakub Pawelec

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 276 - 281

Using the example of the utilities sector, this article describes a type of activity of public entities which interferes significantly with the market. A wide understanding of State aid has this consequence that it thus extends to actions which ostensibly are legal but in practice cause significant violations of competition at the cost of, and to the detriment of, private business entities operating in the market. This is the case, for example, when public entities (authorities) carry out commercial activities through commercial entities, eg companies. The practice described in the article and the above-mentioned decisions as taken by the said Polish authorities show that with regard to certain situations and behaviours regarding State aid the other competitors in the market may be left unprotected. There is a thesis that in Poland new and in principle clandestine practices have developed of State aid/support which have a very intensive indirect impact on the market. Keywords: market; clandestine forms of State aid; intervention; Poland; public utilities

Zbigniew Raczkiewicz

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 3, Page 229 - 233

Iryna Zapatrina

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 326 - 337

In recent years, the attitude toward the Public-Private Partnership (PPP), its role in infrastructure development and in overcoming inequalities in the world is constantly changing. New challenges, in particular those related to the approval of the UN Sustainable Development Goals 2030, require the use of new approaches to the implementation of projects involving private business. Completely new models of public-private partnership are emerging, for example, the ‘People First PPPs’ actively promoted by the UNECE. All these circumstances break the longstanding understanding of the role of public authorities, private business and the society in the framework of PPPs in relation to ensuring sustainable development in the world and require the expansion of rights and responsibility to people of partners in PPP projects, including for the achievement of the national indicators of SDGs. One of the important tasks in this area is the improvement of approaches to State support under PPP. To resolve this task a revision / clarification of the forms of such support as well as its principles and conditions should be provided. This paper analyses the problems that exist in this area in the transition-economy countries based on the experience of Ukraine and contains the author’s recommendations on how some of these problems could be resolved. Keywords: Public-Private Partnership (PPP); State support under PPP; State aid; People First PPPs; State guarantees under PPP; Availability Payments.

Benedetta Biancardi

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 270 - 284

This article analyses whether the European public procurement legal framework provides adequate mechanisms to prevent the violation of State aid rules when public undertakings take part in procurement procedures as economic operators. It is argued that one of the main risks when public undertakings bid in a tendering procedure is the cross-subsidisation of their activities. Thus, the paper first analyses the measures provided under State aid law to prevent cross-subsidisation of activities, in particular the Transparency Directive. Then, it focuses on Article 69(4) of Directive 2014/24/EU, which regulates the exclusion of abnormally low tenders tainted by State aid. Specific attention is given to the ratio of the provision, to the type of incompatible aids covered by it, as well as to the relationship between the duties and powers of the contracting authorities and the controlling role of the European Commission. The last section investigates the transposition and application of such provision at national level, in Italy. This article reaches the conclusion that Article 69(4) of the Directive, as currently formulated and applied, is not useful to detect the cross-subsidisation between competitive and reserved activities of public undertakings and make some proposals to improve the overall effectiveness of the system and to guarantee competition on a level playing field between public and private operators. Keywords: Public undertakings; State aid; Cross-subsidisation; Transparency Directive; Abnormally low tenders.