Water Supply Services in Spanish Cities and the Debate on Private Participation in Their Management: Which Model is Most Efficient?

Supplying water to the population is one of the fundamental services of any Spanish city given the importance of the good itself, regardless of how it is managed. However, it is sometimes seen more as a source of extra finance for the municipality, and, in recent years, as an issue of political debate in terms of the adequacy of one form of management or another: public or private. Currently, 35% of Spain's population is supplied by public specialised entities, 33% by private companies under a concession contract, 22% by mixed companies and 10% by undifferentiated municipal services. In simple terms, 45% corresponds to public management and 55% is fully or partially managed by the private sector. By analysing the annual accounts of the companies that operate in the Spain's principal municipalities, this study seeks to determine the role played by the private sector in the management of the mixed companies. Due to the diversity of services provided by these companies and the lack of differentiated statistics for each of them, we have used the Annual Accounts presented to the Central Mercantile Register or the data submitted to the Ministry of Finance in order to assess the influence of private participation on the results of the companies.

Договоры о передаче исключительных прав на объекты промышленной собственности с участием социальных предприятий

The article considers contractual designs aimed at transferring exclusive rights to industrial property. The problem of the contractual process was identified when concluding a contract on the transfer of a set of exclusive rights. Based on the study, a number of changes to Russian laws have been proposed. First of all, this applies to a commercial concession contract. The author proposes to amend the Civil Code of the Russian Federation by supplementing the article on commercial concession with the right of organizations that do not conduct commercial activities to conclude the same contracts on a general basis. The appropriateness of applying the classification of transactions into real and consensual ones in relation to this contract is justified. The peculiarities of transfer of the complex of exclusive rights to objects of industrial property with participation of social enterprises under the legislation of the Russian Federation are studied.

El desistimiento del procedimiento del contrato de concesión de obra pública del Campus de la Justicia de Madrid. Historia de un embrollo .

LABURPENA: Artikulu honetan, aipatzen da zer arazo izan dituen Madrilgo Erkidegoak Justiziaren Campusa eraikitzeko lanak kontratatzeko. Hasiera batean, merkataritza-sozietate publiko bat eratzea erabaki zen, eta, gero, desegin ondoren, obra publikoaren emakida-kontratu bat egitea, merkataritza-sozietateak egindako kontratuak aldez aurretik suntsiarazi gabe; hala, aztertzen da zer arazo sortu dituzten emandako ebazpen ezberdinek; izan ere, Madrilgo Erkidegoko Kontratuen Administrazio Auzitegiak emandakoek emakida-prozeduran atzera egitea eragotzi zuten, baina Madrilgo Justizia Auzitegi Nagusiaren eta Auzitegi Gorenaren epaiek, berriz, onartu egin zuten. Arazo hau Espainiako kontratazio publikoaren araudiak Europako zuzentarauen ondorioz izandako bilakaeraren esparruan aztertzen da. ABSTRACT: This article discusses problems associated to the contracting by the Community of Madrid of the construction work for the Campus of Justice. The constitution of a public corporation was initially chosen and later replaced by a concession contract once the dissolution of the former corporation had been agreed. The article analyzes the problems arising from the different resolutions of the Administrative Court of Contracts of the Community of Madrid that prevented the withdrawal from the concession procedure and the judgments by the High Court of Madrid and by the Supreme Court that did instead admit it. The problem is also analyzed within the framework of the evolution of the Spanish public procurement normative resulting from the European Directives. . RESUMEN: El presente artículo comenta los problemas en la contratación por parte de la Comunidad de Madrid de las obras necesarias para la construcción del Campus de la Justicia. Inicialmente se optó por la constitución de una sociedad mercantil pública y, posteriormente, tras su disolución por un contrato de concesión de obra pública sin resolver previamente los contratos celebrados por la sociedad mercantil. El artículo analiza los problemas surgidos por las distintas resoluciones del Tribunal Administrativo de Contratos de la Comunidad de Madrid que impidieron el desistimiento del procedimiento de concesión y las sentencias del Tribunal Superior de Justicia de Madrid y del Tribunal Supremo que sí lo admitieron. Asimismo, se analiza este problema en el marco de la evolución de la normativa de contratación pública española como consecuencia de las Directivas europeas.

Exclusion of a contractor from participation in a public procurement procedure as a result of contract termination for reasons attributable to them

The article describes obligatory and optional grounds for excluding a contractor on the basis of Polish Public Procurement Law, taking into account the jurisprudence and views of the doctrine. The attention is paid to the optional ground based on art. 24 sec. 5 point 4 of the Polish Act of January 29, 2004, Public Procurement Law, according to which the contracting authority may exclude from the procurement procedure contractors who, for reasons attributable to them, failed to perform or to a significant extent improperly performed a prior public procurement contract or concession contract concluded with the contracting authority, which led to termination or awarding compensation. In order to be able to use the institution, the contracting party must include an appropriate clause in the contract, providing for the possibility of terminating the contract or awarding damages due to contractor’s non- performance or improper performance of the contract, which is a common practice on the Polish public procurement market. However, in the event of such a clause, the contracting authority is obliged to apply it if the condition is met. The article also describes the self- cleaning institution, derived from art. 57 sec. 6 of Directive 2014/24/EU. The self-cleaning procedure can protect the contractor from being excluded from future tenders. However, In order to take advantage of self-cleaning, the contractor has to admit that non-performance or improper performance of the contract is their fault. Keywords: Exclusion; Contractor; Agreement

State Aid Rules and Public Financing of Infrastructure. The Case of Autostrada Wielkopolska S.A.

The operation of a toll road typically involves an economic activity for which State aid rules apply. However, if the construction and operation of the road infrastructure is bundled and they are tendered out together, they usually fall outside the State aid regime. The reason for it lies in the fact that the use of competitive procurement procedures aim to increase the efficiency of public expenditure and to ensure a level playing field for private operators to compete for public contracts. Nevertheless, based on the European Commission’s decisional practice, it transpires that an economic advantage for a concession holder cannot be ruled out automatically, in particular when there are amendments made to the original agreement. On the example of the Autostrada Wielkopolska S.A. case, critical State aid issues are discussed, among others, the application of State aid rules to public financing of infrastructure, the amendments made to a concession contract in the light of the risk assignment problem, as well as the existence of State aid in the form of overcompensation for a concession holder. The considerations are carried out on the canvas of a concrete case; however, they are enriched by the analysis of relevant legal provisions as well as conclusions from the EU courts and the European Commission decisions made in similar cases.

Issues in Determining the Real Value of Concession Fees When Granting Concession for Commercial Use of Maritime Domain

This paper analyzes the legislation related to concessions on maritime domains and indicates the need to adjust certain legal provisions to improve the quality of the concession granting procedure. The object of this paper is to indicate the issues in determining the real value of a concession fee in the process of preparing a feasibility study for granting the concession, and to give a scientific contribution by proposing procedures and measures, which can enable setting more precise concession fee values. Using the methods of comparison, analysis, and synthesis, authors prove that in the process of preparing a feasibility study for granting the concession it is not possible to assess the real value of the concession and concession fee with certainty, as it is necessary to estimate economic sizes in the long term. Each concession contract, lasting longer than five years, should be subject to a peer review owing to changes in economic, political, demographic, and other indicators, and if necessary, the value of concession fee should be adjusted accordingly. The authors explain the stated imprecision in the estimate of economic indicators by the index of uncertainty of economic policies, and with the inability of long-term forecasting of potential economic crises.

Capitalization on the Public Property of the State and of the Administrative-Territorial Units by Means of Concession

Traditional modality of using public property, the concession has played a significant role in the development of the modern state by capitalizing on those goods that by their legal nature have an inalienable character as well as by entrusting some works or public services to legal entities of private law which can execute them or make them more efficient.The economic development of the last decades of the states of the European Union, the acceleration of the commercial exchanges and the extension of the forms of circulation of the goods and services at community level have determined the reconsideration of the concession contract as a legal instrument for the capitalization of the public property goods, of the works and services that the state owns.The consolidation, at national level, of some legal norms meant to regulate concession and its forms was significantly influenced by the provisions of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts. Thus, Law no. 100/2016 regarding the concession of works and services as well as the recent Government Emergency Ordinance no. 57/2019 on the Administrative Code implement the new European vision.