implementation of the new directive 2014/23eu on the award of concession contracts

Implementation of the New Directive 2014/23EU

on the Award of Concession Contracts

- Croatian ExampleProf. Goran Vojković, Ph.D.

Melita Milenković, LL.M.

University of Zagreb - Faculty of Transport and Traffic Sciences

WCTRS SIG2 2015 Conference

Antwerpen 11-12.5.2015

University of Zagreb - Faculty of Transport and Traffic Sciences 2

Republic of Croatia – the youngest EU member


Concessions in Croatia

1990.

1992.

2008.

2012.

Concessions Act – 14 articles





What have we done in 2012?


New regulation entered into force!

• New Concessions Act was adopted on December 7, 2012 and published in Narodne novine (Official Gazette) No. 143 (December 20, 2012)

• Entered into force December 28, 2012.


A full new framework

Concession Act

Private-public

partnership Act

CONCESSIO

N

Public procurement

Act

Plus the General Administrative Procedure Act!


What do we have now?

Concessions

Act

Sector regulation

CONCESSION


Basic classification in Croatian law

• „The concession is a right that is acquired under the contract.”

• Types of concessions are:

• concession for the use of public domain (Res communis) or other domain,

• concessions for public works,

• concessions for public services.


Who can be a provider?

• A concession provider can be:

• Croatian Parliament, Croatian government, state government, on behalf of the Republic of Croatia,

• competent bodies of local (regional) self-government, on behalf of local and territorial (regional) self-government

• separate legal entity duly authorized to grant concessions (one of them – port authorities!)


General Clause

• „Should bodies, legal persons authorized to approve concession, make a legal deal with economic subject in area and activity the concession refers to, which has important characteristics of concession contract, it will be considered such contract has been signed.”


Med-term (three-year) concession plan

• If requested by Ministry of Finance, a concession provider is obliged to provide mid-term (three-year) plan on concession from its jurisdiction with clear estimations of economic effects of future contract implementation with proper regulations determining public finances; also preparation, estimation and implementation of investment projects.


The Annual Plan

• Concession provider shall – prior to the end of the current calendar year - prepare an annual plan of awarding of concessions within it’s jurisdiction for the next calendar year; standard form which is published by Ministry of Finance.

• Concession provider has to explain the difference in relation to the med-term plan, if there is any.


Feasibility study for the concession

• Feasibility study for the concession is made by the concession provider.

• Feasibility study specifically takes into account the public interest, impact on the environment, protection of nature and cultural heritage, financial effects of the concession on the Croatian state budget or budget of local and territorial (regional) governments, as well as compliance with the economic development plans and concession plans.


Criteria

• The criteria on which the service concessions from the best offers are:

• The most economically advantageous tender in terms of the concession provider (quality, innovative, functional, environmental, running costs, support after delivery, delivery date, the cost of services for end users, concession fee…)

• Those who offer the highest concession fee!


The decision on awarding of concessions and the contract

• Concession provider brings the decision on awarding of a concession, after an expert committee reviews and evaluates bids. The decision on awarding of concessions is an administrative act.

• By signing the concession agreement the concessionaire acquires the rights and assumes his liability which is arising from the concession agreement.


Concessions on request

• Concession on request is the strict exception!

• For example, if existing and/or planned economic activity of undertaking in a particular location makes the subject of the concession for which the application is submitted, the inherent technological or functional unit, and the concession is only for the performance of the economic activity.


The legal protection

• Legal protection in the awarding of concessions is regulated by Croatian Concession Act which shall be carried out in accordance with the regulations governing public procurement.

• Awarding Concession - State Commission for Supervision of Public Procurement.

• For concession contracts – trade court.


Croatian Experienece to Europe


Regulation of administrative contracts

• The concession agreement is a very important part of the concession relationship.

• Institute of administrative contracts is known in a number of European countries (in France, Italy, Germany, Spain), but it’s not available in some neighboring countries of Croatia (eg. in Slovenia).

• In the Anglo-American legal system there is no institute of an administrative contract.


Addition to the strategic development documents

• Request that in the plan of awarding of concessions clearly state propositional future economic impacts of concessions, prevents the awarding of concessions as an arbitrary political decision.

• New demands for the development of plans for awarding of concessions required by The Concessions Act, as a result of a need for updates of existing strategic documents (national strategies, development plans, long-term development plans).


Feasibility study – a public interest

• A public interest is in fact an expression of political will, which must be taken into account before one embarks on what belongs to the law - initiating the procedure for awarding of concession.

• The Croatian legislation didn’t specify who is responsible for defining the public interest, but according to the existing practice we consider it to be the representative bodies.


Education of officers

• New concession model searches for an adequate preparation of public officers, because fundamentally it’s different from the present one.

• Especially, it should be taken care of decentralized states where the growing number of concessions will be awarded to the local government or various forms of public institutions.


Croatia - almost the ideal country for the

implementation of the new model, and what about the

others?• Croatia is almost the ideal country for the application of concession models.

• The operation of the infrastructure, especially for marine and inland ports, but also by a number of other important general and public goods (national parks), water and water resources is carried out through concessions.

• How is this model applicable to systems where the port management is carried out primarily up through the companies?


Thanks!www.slideshare.net/vojkovic

[email protected]

implementation of the new directive 2014/23eu on the award of concession contracts

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types of concessions

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