International Construction Law Review
PUBLIC-PRIVATE CONSORTIA: A MODEL FOR PPP AND PUBLIC PROCUREMENT LAW ASSESSMENT
PROF DR PETER FRIEDRICH BULTMANN *
Rechtsanwalt, Professor of Law, Humboldt-University, Berlin
Abstract
Public contracting entities enter into partnerships with private economic operators to fulfil tasks that are in the public interest (public-private partnerships: PPPs). Examples are paramount, mostly in the field of public utility services. These public-private partnerships usually take the legal form of incorporated limited liability companies. The public procurement law treatment of these is the subject-matter of the European Court of Justice decisions in the cases of Mödling
1 and Acoset.2 No European Court of Justice case law, however, is available to give guidance where the public-private partnership takes the form of an unincorporated consortium. This article deals with the public procurement law aspects of public-private consortia.
Common models for a PPP and public-private consortia
The European Commission’s Green Book on public-private partnerships (PPPs) differentiates between PPP models:
- (i) that are solely based on contractual links, and
- (ii) institutional models as a distinct entity.3
Within the notion of contractual PPPs, the Commission refers to concession-type contracts between a contract awarded by public entity and a private concessionaire. Such concession-type arrangements are not the subject-matter of this article.
Institutional PPPs, as seen by the Commission, are set up as creating a “legal personality”. The private partner provides assets, financing and/or know-how for the performance of services that are in the public interest. In exchange, the private shareholder earns revenues either via dividends or as a subcontractor to the company. The Commission does not distinguish between a “legal personality” that is an incorporated joint venture company and an unincorporated consortium. The various legal forms of
* Email: piet.bultmann@staff.hu–berlin.de
1 Community of Mödling, ECJ Judgment, 10 Nov 2005 (C–29/04).
2 Acoset, ECJ Judgment, 15 Oct 2009 (C–196/08).
3 Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions, COM (2004) 327 ?nal, para. 20.
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