Conference on New French PPP Law
Jean-Luc Tixier and his colleagues of CMS Bureau Francis Lefebvre hosted a seminar on Thursday 30 September 2004 on the New French Law establishing the PPP Contract between the Public and Private Sectors.
The guest speaker was Alain Ménéménis, Conseiller d'Etat, Associate Professor of the University of Paris XII and the Rapporteur of the new law. Nicholas Zervos and Bill Carr of CMS Cameron McKenna also spoke about the Anglo Saxon experience of the PPP model.
Existing Framework
The long awaited order, setting out the framework for new Partnerships Contracts to be entered into by central and local government in France was adopted on 17 June 2004 some 11 months after the enabling legislation was passed.
In brief, before the new law, infrastructure could be procured by the traditional procurement methods, whether the "Marché Publics" for specific separate public works procurement of design, construction or operation and for which deferred payment is not permitted; or the "Concessions" which, as a form of a "Délégation de Service Public", involve a public service undertaking taken as a whole with the concessionaire paid by the project revenue generated from the users, and not paid by the public sector. There are certain other sector specific procurement options, generally based on a long term administrative lease, in for instance the health, prisons and defence sectors.
New French PPP Contract Law
The new law fills the gap and permits partnership contracts which can be based on deferred payments from the public sector during the operation period and in respect of each of the combined design, construction and operation by the concessionaire.
An important pre tender evaluation criteria is that the proposed project must be determined to be either "urgent" or "complex", concepts which may prove to be difficult to apply clearly. The law provides for competitive dialogue in most cases and permits arbitration of disputes, thus avoiding potential delays in the administrative courts.
The law requires partnership contracts to contain a number of compulsory provisions, dealing with matters including the allocation of risk between the public and private sector, payment structures (which must allow investment, operational and financing costs to be separately identified), and hand over on termination, to enable the public sector to perform its public service obligations.
The PPP unit of the French Ministry of Finance is currently developing guidance notes for partnership contracts. The committee responsible for this includes François Tenailleau, a senior associate with CMS Bureau Francis Lefebvre's public law team.
Further information
If you would like any further details or advice please contact Nicholas Zervos on +44 (0)20 7367 2016 or at nicholas.zervos@cms-cmck.com, Bill Carr on +44 (0)20 7367 2002 or at bill.carr@cms-cmck.com, Jean-Luc Tixier on +33 1 47 38 56 48 or at jltixier@bfl-avocats.com or François Tenailleau on +33 1 47 38 56 41 or at f.tenailleau@bfl-avocats.com
