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[box] With a general and unsubstantiated cliché that “privatization is an one-way for EYATH” transmitted by the private TV channels – who are the only ones – the Greek government welcomed the news of the retreat of the European Commission and the exclusion of water services from the new concessions directive.[/box]
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After the strong stance of the German public opinion and despite of collusion of the political parties and of course in view of the elections, it seems that the Commission was forced to retreat in the end and to completely exclude water services from the Concessions Directive.
This Directive for many actors of the civil society was a way to facilitate privatization across Europe against the will of most Europeans and fortunately it was averted. Although Commissioner Barnier tried repeatedly to reassure that the Commission does not make these changes in order to proceed with privatizations his statements fell to the void thanks to the good level of awareness of European citizens on the matter. Reading the angry response (below) of AQUAFED, the International Federation of Private Water Providers , to the Commission’s memo, even the most naive understands what was the case and the stakes.
This great victory for which one can read in detail in the European Commission Memo that follows, should have already become an emblematic argument to the government’s lips for excluding Greek water services from privatization, unless of course the conception of ‘new Greece‘ , that was invented a few days ago by the governmental communication team, indeed provides for less “blue“, ie fewer rights to access to water for their citizens.
An one-way is unfortunately laid when one can confirm the lack of political will for a solution sought in a democratic way. We are still waiting for the presidential decree so the 17 municipalities of Thessaloniki can hold local referendums against the privatization of EYATH. An one-way is laid even when there is no will to protect the public interest.
Because how else can one describe this obsession, despite the changes in the European landscape, even despite the declarations of “mistakes” by the IMF, and even despite the Commission’s letter (where they declare that they are not pushing in the least for the privatization and that they act fully in accordance with the Article 345 TFEU ) in a sale of a profitable enterprise of geostrategic nature (see disputes over large dams and water scarcity in the Middle East), that is also necessary for “development“?
If the Prime Minister does not do this minimum, now, -which is the maximum for all of us, i.e. our water– while the climate in Europe, the EU institutions and legal science pave him exactly the opposite “one-way“, we are not expecting anything from his office.
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EUROPEAN COMMISSION
MEMO
Brussels, 26 June 2013
Commissioner Michel Barnier welcomes agreement on new rules for the award of concession contracts.
I congratulate the European Parliament and the Council on having reached agreement on a new Directive on the award of concession contracts. This is not only about ensuring transparency and equal treatment in the single market. It’s about providing a flexible framework for partnerships between public and private that will boost much needed investments in infrastructure and services, and ultimately contribute to better quality works and services for citizens at a better price. These new rules will greatly improve legal security for public authorities and economic operators across Europe when cooperating on infrastructure projects such as roads or ports or the provision of services to the citizens.
The draft Directive confirms the autonomy of contracting authorities across Europe to decide on the best way to provide public services. When they have recourse to concessions, the new rules will give them flexibility as to the choice of the award procedures and the choice of the most appropriate, non-discriminatory award criteria.
The new rules will also provide for a well-functioning internal market in concessions, by ensuring EU-wide transparency and competition as concession notices will be published in the Official Journal of the EU. This means not only more opportunities for contracting authorities but also for EU companies, including SMEs, and consequently increased economic growth and more jobs. The draft Directive further clarifies the cases in which contracts concluded between contracting authorities are not subject to the application of concession award rules. This brings valuable support to the development of public-public cooperation.
Finally, it was agreed, as I suggested last Friday, to exclude water from the scope of the new rules.
The negotiations in the Parliament and in the Council, accompanied by EU citizens’ voices on the issue of water in particular, have led to a very good result. I am confident that the European Parliament and the Council will confirm this very soon. I would like to warmly thank all the people who have contributed to this success and in particular, the rapporteur, Philippe Juvin, as well as the Cypriot, Danish and Irish Presidencies for their willingness to reach a first reading agreement, and for their spirit of compromise. I also wish to thank all the stakeholders for their involvement in consultations; they have helped us to come up with solutions adapted to concession contracts.
Background
In December 2011, as announced in the Single Market Act (IP/11/469), the Commission adopted its proposal on the award of concession contracts (IP/11/1580). This proposal is part of an overall programme aiming at modernising public procurement in the European Union.
Concessions are partnerships between the public sector and mostly private companies, where the latter exclusively operate, maintain and carry out the development of infrastructure (ports, airports, parking garages, toll roads) or provide services of general economic interest (energy and waste disposal for example). Concessions are the most
common form of Public Private Partnership (PPP). Unlike public contracts, which are regulated by the European public procurement Directives 2004/17/EC and 2004/18/EC and public works concessions, which are partially covered Directive 2004/18/EC, the award of service concessions is not subject to any clear and unambiguous provisions, being guided only by the general principles of transparency and equal treatment of the Treaty on the Functioning of the EU. This loophole gives rise to potentially serious distortions of the Single Market such as direct awards of contracts without any competition (with associated risks of national favouritism, fraud and corruption) and generates considerable inefficiencies.
Main elements of the new rules:
(1) A clearer and more precise definition of a concession (building on the Court’s case law);
(2) Coverage of award of works and services concessions both in the classic sector (all other sectors not covered by utilities) and in the utilities sector (Directives 2004/18/EC and 2004/17/EC respectively);
(3) Compulsory publication of concessions in the Official Journal of the EU, when their value is equal to or greater than €5,000,000;
(4) Pragmatic solution for dealing with changes to concessions contracts during their term notably when justified by unforeseen circumstances;
(5) Establishment of certain obligations with respect to the selection and award criteria to be applied by the contracting authorities and contracting entities when awarding concessions. These rules aim at ensuring that such criteria are published in advance, are objective and not discriminatory. In general, they are less rigid than similar provisions
currently applicable to public contracts;
(6) No specific award procedures but instead definition of certain general guaranties aimed at ensuring transparency and equal treatment with particular reference to negotiation;
(7) Application of the Remedies Directives (Directives 89/665/EEC and 92/13/EC, as amended by Directive 2007/66/EC) to all concessions above the threshold, which will guarantee judicial protection for all EU companies bidding for such projects More information on concessions is available at: MEMO/11/932
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AquaFed
THE INTERNATIONAL FEDERATION OF
PRIVATE WATER OPERATORS
PRESS RELEASE
Concessions Directive:
European Commissioner renounces transparency and equity in public water services to please German public lobbies
Brussels, 26 June 2013. Through its proposal for a directive on “concessions”, the European Commission has tried to improve transparency in the delivery of public services of general economic interest, to ensure equity for operators of these services and to improve legal security for local governments that want to enter into Public-Private Partnership contracts (PPPs). The initial draft directive proposed by Commissioner Barnier provided procedural guidance to local authorities if and when they decide to enter into a PPP with an external operator. It did not create any obligation for authorities to outsource any of their public service.
On June 21, contrary to previous statements and despite evidence that the directive has nothing to do with privatization” of water services, Commissioner Barnier announced that he was willing to exclude water services from the list of services that would have to comply with the future directive. This decision is detrimental to European citizens. Furthermore, the way it was taken is not the sign of transparency and public accountability. A dangerous exclusion. Excluding water from the scope of the directive on concessions would significantly reduce its usefulness and would go against the interests of EU citizens.
– AquaFed estimates that there are currently over 12,000 PPP contracts for water or wastewater in Europe that are designated as “concessions” in the EU legislation. This number exceeds by far the number of PPP contracts in other sectors and might be close to half the total number of “concessions” contracts across the European Union that are potentially subject to the future directive. In that context, excluding water would mean that the Directive would only reach half of its initial target.
– The exclusion of water services would not improve transparency in the activity of opaque public utilities and would not reduce inequity of treatment of operators in a sector that is very sensitive for European citizens and in which many of them are calling for increased transparency. Endusers will bear the burden of this.
We hope that the EU will be able to find a more appropriate solution. The Commission should not promote a half-useful, half-detrimental directive. Either the Directive is adopted without any exclusion or exception of any kind for the water sector, or its merits are not sufficient and it should be significantly modified for all sectors before it can be adopted.
Democracy as a pretext
The Commissioner has justified this decision by accepting to please the signatories of the current European Citizens’ Initiative on the Human Right to Water. He treats these signatories as if they were representative of all European Citizens and as if they were opposed to this directive. This is premature. Relevant services of the EC declare that they have not yet received the initiative formally and it has never been discussed within the European Parliament.
Furthermore, this Initiative has only attracted many signatories because, in reality, it has been marketed throughout Europe to support better implementation of the human right to safe drinking water and sanitation. Private water operators support the human right to safe drinking water and sanitation. On 22 March 2013, AquaFed even proposedi to the EU Commission and Parliament to amend the European Charter on Fundamental Rights in order that this human right is included in EU legislation. The implementation of the human right to safe drinking water and sanitation and the ways of organising the related services are completely disconnected issues, practically and legally. This has been formally recognized by both international lawii and the UN Special Rapporteur on this human
right iii. The number of ECI signatories that are willing to defend this human right, but are opposed to the Concessions Directive cannot be known. It is certainly very small in comparison with the European population, since the Initiative does not even mention the draft directive on Concessions. Furthermore, by the end of February 2013, more than 1.2 million people had signed this Initiative when, before that date, the official campaign website www.right2water.org had never mentioned the Concessions Directive. It is significant to note that close to 80% of signatories (1.3 million) are from Germany, while citizens from other parts of Europe that are the most-exposed to private management of public water services, i.e. England, Spain, France and the Czech Republic have never been very interested in this Initiative
and the number of signatories in these countries is still very small. Therefore, this Citizens Initiative is obviously fueled by German lobbies. It cannot be considered as representative of European citizens and not justify the exclusion of water from the Concessions directive. German public sector lobbies oppose increasing transparency of public water services German municipally-owned utilities that deliver services to cities outside their owners’ territory without benefiting from an “in-house” status and ever having been put into competition with anybody lobbied hard against this directive. These German utilities could have been required to justify their price to water-users in a far more transparent way than they do at present. They would also have to face the test of competition. In Germany, a lot of false arguments were raised. Several lobbies have insinuated that the European Union was willing to force German municipalities to “privatise” their water services. This has been repeatedly rebuffed by Commissioner Barnier and his colleagues. This was pure propaganda, but it was effective: many German parliamentarians have lobbied against this directive being used in the water sector and Commissioner Barnier has yielded to them. The fear of German public utilities of having to run their business in a more transparent way was however stronger than the Commission’s willingness to secure legal certainty for local authorities when outsourcing their water activities and stronger than the international obligations of European States to ensure, “regardless of the form of provision, transparency, non-discrimination and accountability” in water supply services as requested by the human right.
Aquafed will therefore ask the Commission under Regulation (EC) 1049/2001 for access to the communications it has had with German and other lobbies concerning the special treatment they lobbied for with regards to water activities
AquaFed is the International Federation of Private Water Operators. Open to companies and associations of
companies of all sizes and from all countries, it aims to contribute to solving water challenges by making Private
Sector know-how and experience available to the international community. It brings together more than 300 water
companies that serve hundreds of millions of people in 40 countries.
In Europe, AquaFed is present through its members in the majority of EU Member States, mostly by means of
PPP (Public-Private Partnerships, including concession-type) contracts and through contracts with industrial
water-users. The third of the European population benefits from water or wastewater services that are at least
partially operated by private or public-private companies. The majority of these people is served by companies
represented by our Federation.
# # #
Media contacts: Mr. Thomas Van Waeyenberge: +32 4 79 23 78 26 / Thomas@aquafed.org
www.aquafed.org
i www.aquafed.org/pages/fr/admin/UserFiles/pdf/2013-03-22_AquaFed_EuropeanCharter_PressRelease_EN.pdf
ii The UN Human Rights Council in its same historic resolution that embedded the right to safe drinking water and
sanitation in international law. Its Article 7 of this resolution says: “Recognizes that States, in accordance with
their laws, regulations and public policies, may opt to involve non-State actors in the provision of safe drinking
water and sanitation services and, regardless of the form of provision, should ensure transparency, nondiscrimination
and accountability;”
iii The UN Special Rapporteur on the human right to safe drinking water and sanitation wrote a specific report on
the matter and confirmed the disconnect in her letter dated 10 Oct 2012 to Ms. Anne Marie Perret, Representative
of the Citizens’ Committee European Citizens Campaign – ECI where she wrote:
“In seeking to ensure universal service provision, human rights are neutral about the type of service delivery that
is decided upon in a particular country – whether it is direct provision by the State, whether services are operated
by a private company after a formal delegation, or whether the provision of services is informal. However, the
provision through private actors does under no circumstances exempt the State from its human rights obligations
to progressively realize the rights to water and sanitation.”
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