Implementation of the New Directive 2014/23EU on the Award of Concession Contracts - Croatian Example

1. Implementation of the New
Directive 2014/23EU on the Award
of Concession Contracts
- Croatian Example
Prof. GoranVojković, Ph.D.
Melita Milenković, LL.M.
University of Zagreb - Faculty ofTransport andTraffic Sciences
WCTRS SIG2 2015Conference
Antwerpen 11-12.5.2015

2. Republic of Croatia – the youngest
EU member
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3. Concessions in Croatia
1990.
1992.
2008.
2012.
Concessions Act – 14 articles
Concessions Act – 65 articles
Concessions Act – 10 articles
Concessions Act – 49 articles
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4. What have we done in 2012?
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5. 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.
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6. A full new framework
Concession
Act
Private-public
partnership
Act
CONCESSION
Public
procurement
Act
Plus the General
Administrative
ProcedureAct!
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7. What do we have now?
Concessions
Act
Sector
regulation
CONCESSION
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8. 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.
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9. 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!)
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10. 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.”
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11. 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.
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12. 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.
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13. 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.
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14. 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!
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15. 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.
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16. 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.
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17. 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.
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18. Croatian Experienece to
Europe
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19. 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.
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20. 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 byThe Concessions Act, as a
result of a need for updates of existing strategic
documents (national strategies, development plans,
long-term development plans).
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21. 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.
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22. 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.
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23. 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?
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24. Thanks!
www.slideshare.net/vojkovic
goran.vojkovic@fpz.hr
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