Posted in CONSTRUCTIONS & PROJECT FINANCE
Abstract:
The French Council of State has annulled the city council’s deliberation that was authorizing the Municipality of Biarritz to sign a partnership contract concerning the development and the renovation of the “Sea Museum” and the construction of a tourist hub named “City of the sea and of surf”. The Board reached this decision because of the lack of the two following elements: i) the impossibility for the administration to define by its own and provisionally the technical tools suitable for the satisfaction of the needs nor to define the legal and financial structures of a project; ii) the matter of urgency. In this regard, it is interesting to note the difference with the configuration of the Italian normativity, which does not impose such strict limits to the cooperation of the Administration with a private subject.
READ MORE
Posted in INFRASTRUCTURES
Abstract:
The Regional Court of Administrative Justice of Trento has asserted that, in a project financing, the public administration is called to evaluate the project not only in terms of technical value and economic convenience, but also in terms of actual usefulness and benefit for the collectivity. In this particular case, building a cable railway would have not implied any benefit in terms of alternative transportation when compared to the one by road.
READ MORE
Posted in INFRASTRUCTURES
Abstract:
In the field of permission of construction and management of the line 5 of the subway of the Milan, the Regional Administrative Court of Lombardy has asserted that the cost of the construction materials increase does not automatically determine an obligation for the granter to pay the revised remuneration provided for in art. 133 of the Code of Public Contracts (D.lgs. n. 163/2006) but it entails the necessity of a conjunct reexamination of the PEF, as it was provided by the convention.
READ MORE
Posted in INFRASTRUCTURES
Abstract:
The public transport service of the London subway is managed, in a public-private partnership, by a mixed company. In the case under examination, the company was asking the Major of London – associate of the affiliated company- a huge compensation for having published a report on the management of the service, violating a confidentiality clause present in the partnership contract. The English High Court has rejected the injunction, on the basis of public relevance of the information disclosed to the community, establishing in this way an important precedent in relation to the impossibility to consider the litigations between public associate and private associate of an affiliated company in a purely privatistic perspective.
READ MORE
Posted in URBAN ENVIRONMENT
Abstract:
The Regional Administrative Court of Lombardy has clarified that a principle of obligatoriness in the revision of the economic-financial balance plan of the permission it is not in force when the market conditions merely change. In this regard, it has specified that “while in the cases generally referred to in art. 1467 of the Civil Code the establishment outside the contractual relationship affects the correspondence of the services as originally agreed, determining or not the possibility of termination, depending on whether it is “extraordinary and unpredictable”, in the case of concession of public works, the external establishment indirectly influences the correspondence of the services of Public Administration, but it rather influences the development of the activity in which the private subject himself has estimated to gain the proportionate fee for the work already completed”.
READ MORE
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
M. RENNA - V. M. SESSA, ART. 190 - BARATTO AMMINISTRATIVO, in CODICE DEI CONTRATTI PUBBLICI, COMMENTARIO DI DOTTRINA E GIURISPRUDENZA, G.M. ESPOSITO (edited by), VOL. II, 2226 SS., MILAN, 2017.
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
Abstract:
With this ruling, the Court of Justice has asserted that, in principle, Member States have the possibility to impose ulterior formal and juridical conditions other than the ones forested at a European level, concerning the “local action groups”, which are structures of public-private partnership aimed at favoring the local development of rural areas. The ruling is threatening to become an obstacle to the development of the associative model in Europe and to create uncertainties and lack of uniformity in the system, as it sets that the Courts will demand the national judge a check of national normativity compatibility with the conditions established by the Regulation on this matter.
READ MORE
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
Abstract:
In this fundamental ruling, the Constitutional Court has officially recognized the public-private partnership as a management method for local public services, i.e. the selection of an operator via a tender and in-house providing, declaring the unconstitutionality of art. 4 d.l. 13 August 2011 n.138 since it is a replication of the legislation repealed as a result of the referendum of the 12th and 13th June 2011.
READ MORE
Posted in GUIDELINES, REPORTS, OPINIONS
Contribution by our Founding Member Prof. Raquel Carvalho, on Public Private Partnership Health Programme in Portugal – Court of Auditors’ Report.
READ THE FULL TEXT
Posted in GUIDELINES, REPORTS, OPINIONS
The Section of Autonomies of the Court of Auditors, by deliberating on an issue raised by the Regional Control Section for Lombardy regarding a tender procedure for the selection of an economic operator for the planning, execution and the maintenance of a gym, has stated that: i) the financial leasing operation for public works as provided for in art. 187 of the Legislative Decree no. 50/2016 are not considered as investments financed by debt; ii) the procedures in partnership for realization of public works and services that are not substantially corresponding to the general rule of the public-private partnership shall be considered as contracts and operations similar to a financial leasing, independently of the formal definition attributed by the parties.
DOWNLOAD THE DECISION
Posted in INFRASTRUCTURES
Abstract:
In Ireland, the majority of toll roads was built and is now managed by private operators in the ambit of public-private partnership agreements reached with the National Roads Authority. In this ruling, the Court of Justice has excluded that the NRA can operate in competiveness with private operators, with which has a contractual relationships, also in cases where it manages the roads by itself, collecting the tolls.
READ MORE
Posted in INFRASTRUCTURES
Abstract:
In the field of establishment of mixed companies, the Regional Administrative Court of Lombardy has specified that the special rules contained in L. 474/1994 that discipline the divestment and privatization of companies owned by the State and by public entities cannot be applied. This is because it concerns a tender aimed at the establishment of the so-called “institutional partnership” and the D.P.R. 533 of 1996 must be applied to it, which, indeed, disciplines the tender procedures for the selection of the private partner in mixed companies, notwithstanding that, in the privatistic profile, the admission of an industrial partner in the social system has taken place by means of a non-preemptive capital increase, rather than a direct share transfer by the controlled public entities.
READ MORE
Posted in INFRASTRUCTURES
Abstract:
The judgment under consideration puts an end to a long controversy between the members of a mixed company that manages the subway of London, concerning a clause of a partnership contract, defined by the Judge-Rapporteur as a “mesmerizing plot of contractual provisions contained in more than 900 pages”. The decision seems as an interesting declaration of t importance of clearly defining the relationship between the subjects involved in a partnership.
READ MORE
Posted in URBAN ENVIRONMENT
This judgement confirms the ruling of the Regional Administrative Court of Abruzzo – L’Aquila no. 152/2017 that rejected the request of the plaintiff to annul the acts and the provisions related to the tendering procedure issued by the Municipality of Teramo to select the private partner and industrial partner of the company to which the management of the environmental health, the cemetery services, road signs, maintenance of green areas and assessment of the heating systems would be awarded. Firstly, the plaintiff sustained that the applicability of the tender procedures provided for in art. 5 par. 1 of the Legislative Decree 175/2016 which states an obligation to analytically state the reasons for the decision act to establish a publicly-owned company, also semi-public company. In particular, it is has been said that the call for tender should foresee an explicit motivation of the decision of the Municipality to proceed with the establishment of a semi-public company. The Council of State has decided that the call for tender and the acts connected to it are excluded from the obligation to analytically motivate as provided for in art. 5 of the Legislative Decree 175/2016, which is foreseen only with reference to the acts in which the Public Administration expresses its own deliberative power to establish a new publicly owned company, namely to acquire shareholdings. Secondly, the plaintiff stated the unlawfulness of the call for tender in the section in which it prohibited the reliance on capacities, since that, according to the combined disposition of art. 179 par. 1 and 2 and art. 164 par. 2 of the legislative decree no. 50/2016, results a general possibility of application of the procedures of awarding concession contracts of public works and services, as far as they are compliant with the norms of the Code of Public Contracts concerning the exclusion, modalities and procedures for awarding, and the publication and drafting modalities of the calls and of the notices, etc. The Council of State has instead stated that “the inapplicability of the PPP contract to the reliance on capacities, since it is an institution that relieves the lack of technical, organizational and financial requirements of the competitor that does not find room within the internal references, which is limited to a compulsory list and with no further hypothesis such as the one operated by art. 164 par. 2”. In a proposal of partnership, the contribution of know-how of the industrial partner in the managerial expertise of the semi-public company is not fungible and therefore the reliance on capacities cannot find room. Furthermore, not relying on capacities is justified by the fact that the entrepreneur assumes the demand risk in relation to his own investment, through the management of the semi-public company, to which he gives a direction according to his own technical-organizational and professional ability (and not someone else’s ability).
READ MORE
Posted in URBAN ENVIRONMENT
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
Abstract:
The Regional Administrative Court of Lazio has ruled as legitimate the execution of the public procedure by which the Municipality of Orvinio (RI) has selected the private partner of the mixed company in charge of the management of a drugstore, expecting, among the other private partner’s duties, the payment to the outgoing operator of the costs incurred by this latter for the provisional management of the business operation. This, on one hand, demonstrates the flexibility of the institutionalized partnership and, on the other hand, it attests the respect of the administrative justice towards contractual tools that conciliate the satisfaction of the collectivity’s needs – i.e. the management of a drugstore – with the conferment to the private partner of the prior costs which are due to the administration, not related to the future activity of the newco.
READ MORE
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
Abstract:
The ruling in question appears to be particularly innovative, since it considers the award of healthcare and socio-medical services with a high health integration – characterized by the provision of home care services outside public structures – via a procurement of services as an “organizational public-private partnership model that, by outsourcing home care services, entrusts third parties with the task and, for this reason, requires an actual integration effort between the treatment and the care, with a predominance of the scopes of one over the processes of the other”. Therefore, a wide concept of partnership emerges, which considers a traditional procurement of services as a form of collaboration between public and private subjects as a result of the clear social feature of the activities, which are the subjects of the contract.
READ MORE
Posted in HEALTHCARE AND HUMANITARIAN ACTIVITIES
Abstract:
The Council of State, while delineating the differences between an in-house company and a mixed company (operating in the national agricultural information system), has asserted that the main feature of the partnership structures is “the creation of a new model, in which public and private interests will find a point of convergence”.
READ MORE
Posted in GUIDELINES, REPORTS, OPINIONS
The Court of Auditors – Regional control (section for Puglia) has affirmed, in the decision no. 84/2017/PAR, that the presence of a guarantee given by the territorial entity, as set forth in art. 207 TUEL, for loans related to investments, could be the proof of the allocation of the risks on the public subject, which would exclude the possibility to consider private loans in the perspective of the public-private partnership: as provided for in art. 3, point eee) of the Legislative Decree no. 50/2016, interpreted in light of the Eurostat decision “Treatment of public-private partnerships” of 11 February 2004, the goods that are object of the partnership operation shouldn’t be registered in the Public Administrations’ accounts – as instead happens in this case – since the substantial transfer of the risk that is required in all partnership operations would otherwise lack.
The decision is in line with the new discipline of the public-private partnership established by the Code of Public Contracts and by ANAC’s guidelines, which identified in the analysis of the risks one of the main features for the proper functioning of the partnership between public and private subjects.
DOWNLOAD THE DECISION
Posted in GUIDELINES, REPORTS, OPINIONS
The 10th of June 2016 the National Anti Corruption Authority has submitted for public consultation a document named “Contracting authorities monitoring the economic operator’s activities in PPP” for the purposes of applying the guidelines as provided for in art. 181, paragraph 4 of the Code.
After this consultation and after having interviewed the Ministry of Economy and Finances, the Board of the Authority has approved, on 1 February 2017, the outline of these guidelines, which has also been transmitted to the Council of State to undergo their judgment and has also been sent to Commission VIII – Public works, Communications of the Senate of the Republic and to Commission VIII – Environment, Territory and Public Works of the Chamber of Deputies. Once the Authority will receive the feedback, it will proceed with the approval and publishing of the final document.
The document is divided into two sections: the first part includes non-mandatory recommendations (as provided for in art. 213, paragraph 2, of the Legislative Decree no. 50/201) for the identification and assessment of the risks linked to PPP contracts, whereas in the second part there are all the mandatory provisions to monitor the economic operators’ activities that are executing the PPP contract.
According to these guidelines, the main tool that should be used to support the operators in the procedure preceding the awarding of a PPP contract, as provided for in art. 181, paragraph 3, is the so-called matrix of the risks, which is a chart where all the types of risks linked to a given project in PPP are identified together with the odds they can occur, the economic and time consequences of their appearance, the mitigation tools suggested and the attribution of these latter to the competences of a public or private subject.
In regard to the monitoring of the economic operator’s activity, the guidelines are requiring a strict regulation of the contractual clauses, the attachment of the awarded offer to the contract, the use of the matrix of risks during the execution in order to verify if the clauses have been formulated in a way that is guaranteeing a correct distribution of the risks, the definition of the data the operators have to provide to the Administration and the contracting authority that has to periodically deliver a economic-management report of the execution of the contract.
DOWNLOAD THE GUIDELINES
