Regulation of public private partnerships in EU and Maltese Law

Abstract

This thesis was inspired by the growing popularity of public-private partnerships. The recently adopted Concessions directive amplified the scope of this study. Nevertheless, the focus of this thesis is to determine from a public procurement perspective the legal and regulatory and policy framework applicable to public-private partnerships both in Malta and in the EU. This study aims to illustrate the different types of these partnerships, their purpose and advantages in order to explain the reason why governments in Europe and Malta endeavour to embark on these projects. As a corollary, an investigation into the coverage of the Public Sector Directive’s rules over the different types of PPPs, and into the mode of procuring them will be carried out. This study will delve into select legal issues with respect to PPPs in the form of service concessions which were unregulated. This gave rise to significant legal uncertainty regarding their definition, advertising requirements, award criteria and level of crossborder interest required to mandate imposition of Treaty principles. The newly minted Concessions Directive was enacted to solve these long standing issues and thus instil more legal certainty. Therefore this thesis will assess the directive's effectiveness with respect to resolving these issues. Finally, this thesis will trace the origins of the political impetus which is necessary to implement these partnerships in Malta. Moreover an investigation into the policy and regulatory scenario in Malta will be carried out to answer the question of whether Malta’s policy and public procurement rules and practices are conducive to the procurement of PPPs. Suggestions have been made on how to entrench and empower the PPP unit in Malta into the law.