Concessions law international standards |
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The EBRD refers to guidelines and standards that were developed by international organisations and which represent state-of-the-art models. The most significant outcomes of international initiatives designed to promote concessions and concessions-based financing are:
Guidelines for Infrastructure Development through Build-Operate Transfer Projects In recent years, the build-operate-transfer (BOT) structure has played a growing role in industrial and infrastructure projects in areas such as oil and gas, power plants, airports, toll roads, tunnel and water treatment plants. A BOT is a model or a structure that uses private investment to undertake the infrastructure development that has historically been the preserve of the public sector. In other words, in a BOT project, a private company is given a concession to build and operate a facility that would normally be built and operated by the government. At the end of the concession period, the private company returns the ownership of the project to the government, although this need not always be the case. In 1996, in response to an increasing demand for information, advice and guidance on the elaboration of BOT projects, the United Nations Industrial Development Organisation prepared its Guidelines for Infrastructure Development through BOT Projects. These guidelines aim to provide an overview of the conceptual, legal and financial issues associated with BOT projects. They also serve as practical guidelines for project development, negotiation and implementation. Their structure follows those of a standard BOT project, from identification of project opportunities, through feasibility studies, formation of a consortium, bidding procedure, contractual and financial packages, to the operation, maintenance and transfer of ownership.
Legislative Guide on Privately Financed Infrastructure Projects In 2000, the United Nations Commission on International Trade Law adopted the Legislative Guide, which contains a set of recommended legislative principles aimed at assisting the establishment of a legislative framework favourable to privately financed infrastructure projects. The guide is intended to be used as a reference by national authorities and legislative bodies when preparing new laws or reviewing the adequacy of existing laws and regulations. It also identifies areas of law that are most relevant to private capital investment in public infrastructure projects and discusses those laws which would be conducive to attracting private capital.
Basic Elements of a Law on Concession Agreements In early 2000, under the advocacy of the Organisation for Economic Cooperation and Development, an expert group was formed with the aim of preparing Basic Elements of a Law on Concession Agreements. The Basic Elements were not designed as detailed legislation for direct incorporation into local systems. The main objective was to provide a reference for government authorities and parliaments in preparing new laws or reviewing the adequacy of existing laws and regulations. UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects Following the adoption of the Legislative Guide and to the benefit of, in particular, developing and transition countries UNCITRAL has made a decision to develop a set of rules/model laws governing PFI projects. The UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects based primarily on the Legislative Guide were adopted in July 2003. The EBRD took an active part in the preparation of these model legislative provisions and has been promoting the application of these rules in its countries of operation by way of assisting authorities with the upgrading of local legal frameworks to best internationally accepted standards. Other relevant materials include:
Commission Interpretative Communication
Green paper on public-private partnerships and community law on public contracts and concessions
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Official Journal L 134 , 30/04/2004 P. 0114 – 0240
Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. Official Journal L 351 , 26/11/2004 P. 44 – 44
The Directives 2004/18 and 2004/17 entered into force on 30 April 2004 and were last amended by the Commission Regulation (EC) No 1874/2004 of 28 October 2004 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect to their application thresholds for the procedures for the awarding of contracts. The Member States are obliged to implement the directives by 31 January 2004. In case of non-compliance by that date, the Directives will have direct effect in the respective Member-State. The Directives recast the earlier Directives imposing EU-wide competitive tendering for public contracts above a certain value. These Directives set out: - The types of entities and contracts which are subject to the Directives; - The procedures to be applied in awarding public procurement contracts. Whereas the Directive 2004/18/EC deals generally with the award procedure of public contracts, the Directive 20004/17/EC applies only to public procurement in the specific sectors. The current amendments aim to increase simplification and modernisation of procedures for the awarding of public contracts for contracting authorities and economic operators alike. More transparency into the contract award procedure shall be provided. These Directives are based on the case law of the European Court of Justice on awards criteria, which clarifies the possibilities to meet the needs of the public concerned, including social and environmental factors. Furthermore, they shall ensure that contracting authorities and bidders can save time and money by using new technology (electronic procurement) to manage the tendering process. Financial services covered by the Directives do not include transactions by the contracting authorities to raise money or capital. Accordingly, contracts relating to the issue, purchase, sale or transfer of securities or other financial instruments are not covered
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