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also recognised that compliance with these rules can be „an effective instrument
for preventing restrictions of competition, while at the same time permitting State
authorities them selves to define and monitor the conditions regarding quality,
availability and environmental requirements”. 6
1.2. The challenge for the Internal Market: to facilitate
the development of PPPs under conditions
of effective competition and legal clarity
8. This Green Paper discusses the phenomenon of PPPs from the perspective of
Community legislation on public contracts and concessions. Community law does
not lay down any special rules covering the phenomenon of PPPs. It none the less
remains true that any act, whether it be contractual or unilateral, whereby a public
entity entrusts the provision of an economic activity to a third party must be
examined in the light of the rules and principles resulting from the Treaty,
particularly as regards the principles of freedom of establishment and freedom to
provide services (Articles 43 and 49 of the EC Treaty) 7 , which encompass in
particular the principles of transparency, equality of treatment, proportionality and
mutual recognition 8 . Moreover, detailed provisions apply in the cases covered by
the Directives relating to the coordination of procedures for the award of public
contracts 9 . The se Directives are thus „essentially aimed at protecting the interests
of traders established in a Member State who wish to offer goods or services to
contracting authorities established in another Member State and, to that end, to
avoid both the risk of preference being given to national tenderers or applicants
6
Resolution of the European Parliament on the Green Paper on services of general interest, adopted
on 14 January 2004.
7
The rules on the internal market, including the rules and principles governing public contracts and
concessions, apply to any economic activity, i.e. any activity which consists in providing
services, goods, or carrying out works in a market, even if these services, goods or works are
intended to provide a „public service', as defined by a Member State.
8
See Interpretive Communication of the Commission on concessions in Community law, OJ C 121,
29 April 2000.
9
i.e. Directives 92/50/EEC, 93/36/EEC, 93/37/EEC, 93/38/EEC, relating to the coordination of procedures
for the award respectively of public sendce contracts, public supply contracts, public works contracts, and
contracts in the water, energy, transport and telecommunications sectors. The se Directives will be
replaced by Directive 2004/18/EC of the European Parliament and of Council of 31 March 2004 relating to
the coordination of procedures for the award of public works, supply and sendces contracts, and Directive
2004/17/EC of the European Parliament and of the Council of of 31 March 2004 relating to the
coordination of procedures for the award of contracts in the water, energy, transport and postał sendces
sectors, which will be published in the near future in the OJ. The [provisional] version of the new Directives
may be consulted at the website
http://www.europarl.eu.int/code/concluded/default 2003 en.htm.
Moreover, in certain sectors, and particularly the transport sector, the organisation of a PPP may be
subject to specific sectoral legislation. See Regulation (EEC) No 2408/92 of the Council on access of
Community air carriers to intra-Community air routes, Council Regulation (EEC) No 3577/92 applying
the principle of freedom to provide sendces to maritime transport within Member States, Council
Regulation (EEC) No 1191/69 on action by Member States concerning the obligations inherent in the
concept of a public sendce in transport by raił, road and inland waterway, as amended by Regulation
(EEC) No 1893/91, and the amended proposal for a Regulation of the European Parliament and of
the Council on action by Member States concerning public sendce requirements and the award of
public sendce contracts in passenger transport by raił, road and inland waterway (COM(2002) 107
finał).
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