LAW ON PUBLIC PRIVATE PARTNERSHIP AND CONCESSION Status The Law on Public Private Partnership and Concession has been adopted by the Parliament on 22 November 2011 and it was published in the Official Gazette of Republic of Serbia n.88/11.

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Dec 13, 2013 (3 years and 5 months ago)

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LAW ON PUBLIC PRIVATE PARTNERSHIP AND CONCESSION



Status

The Law on Public Private Partnership and Concession has been adopted by the
Parliament on
22
nd

November

2011 and it was
published in the Official Gazette of Republic of Serbia n.88/11.


Purpose

The purpose of this Law is to create a favourable framework for promoting and facilitating the
implementation of privately financed concession/PPP projects enhancing transparency, fairness,
efficiency and long
-
term sustainability, in development of infrast
ructure and public service
projects in the Republic of Serbia.


It aims at further developing the general principles in the award of contracts by public authorities
through the establishment of specific procedures for the award of concessions and of PPP
pr
ojects. This Law sets forth the conditions under which local and foreign legal or natural
persons may be awarded a concession or a PPP contract in all the sectors that are under the
jurisdiction of Serbia, pursuant to the Constitution and laws of Serbia an
d EU Community law.


For the first time in Serbian Legal System the
legal definition of
PPP as a legal instrument is
introduced.


Scope

This law regulates the conditions and manner for preparing, proposing and approving project
proposals for public
-
private

partnership (hereinafter: PPP), public bodies and parties in charge of
proposing and implementing public
-
private partnership projects, the rights and obligations of
public and private partners, PPP contracts with or without concession elements (hereinafte
r:
public contract), the scope of concessions, the authorities and parties in charge of the concession
approval procedure, the termination of concessions, legal protection in the public contract award
procedures, protection of the rights of parties partici
pating in the procedure, the establishment
and the competences of the PPP Commission, and other issues relevant to PPP with or without
elements of concession.


Principles

The regulation of conditions, manner and procedures for the award of public contracts

is based
on the principles of protection of public interest, efficiency, transparency, equal and just
treatment, free market competition, proportionality, environmental protection and autonomous
will of parties to the contract.


Procedure

The procedure fo
r the selection of the private partner shall be either the public procurement
procedure prescribed by the law regulating public procurement or the concession granting
procedure regulated by this law.

A PPP contract is signed as a public procurement contract or a concession granting contract
(public contract).

If the implementation of a PPP project implies the granting of a concession, or the provision of
services with the right to exploit the specific

service and the right to collect payment, the
procedure for the selection of the private partner shall be implemented according to the
provisions of this law.

If the concession which is granted consists predominantly of characteristics of concession of
pu
blic works, the selection of the concession holder / private partner shall be subject to the
public procurement procedure as regulated by the law on public procurements, within the
available types of procedures.

If the public body for the purposes of impl
ementing a PPP project is engaging advisors, their
selection shall be according to the law regulating public procurements.


Proposing PPP Projects without Elements of Concession

The public body
shall
submit a proposal of the PPP project for the purpose of
acquiring
an
approval and adoption to the following bodies for project approval:



1) to the Government, when the purchasing entity is the Republic of Serbia or another
public body of the Republic of Serbia;



2) to the government of the autonomous provinc
e, when the purchasing entity is the
government of the autonomous province or another public body of the autonomous province; and


3) to the municipal or city
assembly

when the purchasing entity is the unit of local self
-
government or a public body of such

a unit.


Proposing Concession

Act

On the basis of the economic, financial, social and other indicators and the assessment of the
environmental impacts of the concession activity, the relevant public body shall prepare the
proposal for the adoption of the
concession granting act which shall be submitted to:


1) the Government, when the authority granting the concession is the Republic of Serbia;


2) the government of the autonomous province, when the authority granting the
concession is the autonomous prov
ince or another public body of the autonomous province; and


3) the municipal or the city
assembly
, when the authority granting the concession is the
unit of local self
-
government or a public body of the unit of local self
-
government.


Other
rules

The Law

also regulates
Public Contract Content and elements, Direct Contrac
t
,
bidder
’s
protection right, right of pledge, dispute resolution, termination of Public Contracts,
Supervision
over Implementation of Public Contracts
,
The Commission for PPP’s
,
Public Co
ntracts Registry

etc.


Institutional Framework


Technical assistance in the implementation of public
-
private partnership and concession projects
in accordance with this law shall be provided by the Public
-
Private Partnership Commission
(hereafter:
Commission) established by the Government

on 09
th

of February 2012 (
Official
Gazette of Republic of Serbia n.13/12
)

at the proposal of Prime
-
Minister, the ministry in charge
of economy and regional development, the ministry in charge of finance; the minist
ry in charge
of infrastructure, the ministry in charge of mining, the ministry in charge of utility activities, the
ministry in charge of environmental protection, the autonomous province and the City of
Belgrade.

The Commission has nine members. The techn
ical secretariat of the Commission is in
the Ministry of Economy and Regional Development, consisted of 3 employees of the Ministry.


The Commission issued its Rules of Operation on the session held on 13
th

of March 2012.


Regulation


In accordance with th
e Law the following regulation will be adopted:

1) Rules on Establishment and Conduction of the Public Contracts Registry


Minister of
Finance

2) Decree on Monitoring the Implementation of the Public Contracts
-

Government

3) Value for Money Methodology


Public Sector Comparator


PPP Commission



EU Law Sources


EN: The Treaty on Functioning European union


TITLE I The Internal Market, Article 26, and
TITLE VII, CHAPTER 3 Approximation of Laws, Article 114.


EN: Directive 2004/18/EC of the European Parl
iament 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


ЕN: 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


ЕN: Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and
administrative provisions relating t
o the application of Community rules on the procurement
procedures of entities operating in the water, energy, transport and telecommunications sectors


EN: COUNCIL DIRECTIVE of 21 December 1989 on the coordination of the laws, regulations
and administrat
ive provisions relating to the application of review procedures to the award of
public supply and public works contracts (89/665/EEC)


EN: DIRECTIVE 2009/81/EC OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 13 July 2009on the coordination of procedures
for the award of certain works
contracts, supply contracts and service contracts by contracting authorities or entities in the fields
of defence and security, and amending Directives 2004/17/EC and 2004/18/EC


EN: Regulation (EC) No 2195/2002 of the Europe
an Parliament and of the Council of 5
November 2002 on the Common Procurement Vocabulary (CPV)


EN: COMMISSION IMPLEMENTING REGULATION (EU) No 842/2011 of 19 August 2011
establishing standard forms for the publication of notices in the field of public
procurement and
repealing Regulation (EC) No 1564/2005


EN: Commission interpretative communication on the application of Community law on Public
Procurement and Concessions to institutionalized PPP (IPPP)


EN: COMMUNICATION FROM THE COMMISSION TO THE EURO
PEAN PARLIAMENT,
THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE
COMMITTEE OF THE REGIONS
-

Mobilizing private and public investment for recovery and
long term structural change: developing Public Private Partnerships


EN: INTERPRETATIVE CO
MMUNICATION on the application of Article 296 of the Treaty in
the field of defense procurement