Offentlig-private selskaber: Udbudsretlige udfordringer set i lyset af økonomiske rationaler

Abstract

Experts have stated that efficiency and growth in markets for public welfare services can be enhanced through strong public-private cooperation. Among other organization forms, public-private companies have been mentioned as a suitable form of cooperation to carry out public welfare services. However, it appears that the European procurement law creates barriers that hinder their development. Therefore, the purpose of this thesis has been to analyze how changes in the EU regulatory framework may encourage the use of public-private companies to carry out public welfare services. Firstly, I found it particularly difficult to determine the obligations related to the publication of the contract because of the differential regulation that arises from the definition of the priority services and the non-priority services. This uncertainty seemed to imply faulty tendering procedures which imply a great loss of resources. Based on both legal and economic considerations, I have concluded that a removal of the defini-tion of the priority and the non-priority services in the procurement directive would be a way to increase the legal certainty. Secondly, I found that the regulation of how the contracting authorities are to form a public-private com-pany was uncertain too. This uncertainty referred in particular to the question on whether a contracting authority is allowed to form a public-private company without any kind of competition exposure to partici-pate in a tendering process for its own public welfare contract afterwards. The discussion on this issue led to the conclusion that the European Court of Justice (ECJ) should determine that this approach is incompat-ible with the Community law primarily because of the principle of equal treatment. Finally, the thesis contains an analysis of the economic rationales behind using public-private companies to carry out public welfare services. Seen from a legal perspective I found that the Community law is in conflict with the economic rationales, and therefore I have concluded that the ECJ should adopt a more lenient interpretation of the public-private companies, which carry out a public welfare service in order to meet the economic rationales.