Abstract

A Legal Framework for the Public-private Co-operation Contract – a need for Action in the “Enabling and Guarantor State”

Although PPP is a widespread phenomenon in administrative practice, the German Code of administrative procedure (Verwaltungsverfahrensgesetz, VwVfG) does not give the adequate legal framework for both public and private partners. Influenced by the traditional doctrine of the state being imperative instead of co-operating, the Code mainly provides for the so-called “subordinative contracts” which substitute an imperative administrating act, thus deferring the “co-operative contracts” essentially to the contracting parties. Although legal experts have been called to provide for expertises on the matter some years ago, Parliament is far from adopting anything more than what is called a “small reform”. On the contrary, this article opts for a more ambitious and fundamental reform by proposing a complete “law of public-private co-operation contracts” which may nevertheless be integrated in the existing Code of administrative procedure. This law will embody the “doctrine of administrative contract” (Lehre vom Verwaltungsvertrag) which labels any contract concluded at least by one public authority “administrative contract” and submits it to almost the same rules, may its content be of public or private nature. Although most adherents of the doctrine stick to the public /private dichotomy when it comes to jurisdiction, all these contracts should fall within the jurisdiction of administrative instead of civil courts.

The specific provisions shall contain four types of PPP which do not intend to cover the widespread forms of co-operation between the public and the private sector. Instead, they mark the degree of autonomy attributed to the private partner in his relations to the population for which the service the co-operation is aimed at is provided. Therefore, the need for safeguarding state responsibility for the fulfilment of public services will increase from degree to degree. This is going to be achieved in a flexible way which essentially confers the task to the contracting parties themselves, nevertheless installing minimum requirements differing from type to type. The aim of the law is both giving incentives and (minimum) constraints, thus fulfilling the state's role of an “activating”, but also “safeguarding state” (“aktivierender Staat”/“Gewährleistungsstaat”). Furthermore, interference with existing procurement law, corporate law and procedural law will be briefly discussed.

The article concludes with a detailed draft law.