In the economy of many countries, a special form of relations between commercial enterprises and government has appeared. The concept of public-private partnership is used to indicate this interaction. Let's consider it further in detail.
General information
The state and private business form an alliance for the implementation of projects of public importance in various fields of activity. The interaction of government and commercial structures has now reached a new level. Currently, it is fixed at the legislative level in 224-FZ. These relations can be completely considered as an integral sign of a mixed economy.
Features
The development of public-private partnerships contributes to the formation of basic financing models, management methods, and property-related relationships. In this process, a set of issues related to the redistribution of powers is of fundamental importance. They arise as an inevitable consequence of the expansion of interactions between commercial structures and government. A number of experts believe that in many cases, public-private partnerships are to some extent privatization or its absolute alternative. Such an opinion, for example, is expressed regarding concessions. Meanwhile, it is worth noting that public-private partnerships are really an institutional way of transforming areas of activity that are traditionally related to the conduct of power. However, at the same time, the tools used in cooperation do not take them completely beyond the scope of state regulation.
Redistribution of powers
Public-private partnership is cooperation, which involves the provision of not all legal opportunities to which the sovereign right of the owner in economic circulation breaks up, but only a certain part of them. We are talking about the right of management, changes in the capital value of material assets, the transfer of certain powers to other persons. A fairly extensive experience in the redistribution of legal opportunities between the government and commercial structures is available in the areas of public services, namely, infrastructure sectors. They have historically formed traditions of the transfer by the state of some of the basic competencies to private business. The authorities are responsible to society for the continuous flow of public goods. This determines the desire to keep some industries in state ownership. At the same time, private enterprises are characterized by high mobility and efficient resource exploitation. In addition, businesses are inclined to innovate. Public-private partnerships are a way of harnessing the benefits of both types of property without deep changes in society.
Power involvement
The state under any conditions remains a participant in public law relations. This circumstance also plays a key role in civil relations in which power as a sovereign is not an ordinary subject of law. In this regard, we cannot talk about the initial equality of private and public partners. It will occur only if, on the basis of the sovereign rights of the authorities, the conditions and specifics of the implementation of civil legal relations are defined in the cooperation agreement. In other words, the state will become a special entity. This is expressed primarily in the fact that the government itself establishes a legal framework within which all other participants must act. In addition, she retains her managerial, administrative functions, even if she enters into the relations on the principle of equality. This is due to the presence of authority to make administrative acts. They, in turn, ignore this equality. Initially, it is assumed that the state enters into civil circulation not to satisfy its own specific interests, but for the most effective implementation of public authority.
Power role
Projects approved under PPP are not just a combination of resources. They are a very special configuration of the respective powers and interests of interacting entities. First of all, the state, acting as one of the parties to the partnership, is a carrier of socially significant goals and needs. Moreover, it also performs a control function. Secondly, as a participant in the economic turnover, the state is interested not only in the high results of the partnership, but also in ensuring its commercial effect. In addition, like any normal entrepreneur, a participant in such relationships seeks to maximize profits. In this regard, in the sector of commercial interests between the parties it is quite appropriate, and in some cases, bargaining is necessary on the division of probable risks, the nature of the transferred powers, the conditions for their provision and use.
Property Relations
As international experience shows, the degree of participation of authorities and commercial structures, the conditions for their combination may differ, and in some cases very significantly. So, organizations can act as a party to the agreement. As a rule, these are government contracts for the supply of products or the provision of services for state needs, for management, provision of technical assistance, etc. In this case, property rights are clearly divided. There are other forms in which such a public-private partnership is manifested. Examples of this are production sharing agreements and leasing agreements. In the framework of interactions, a partial transfer of a number of ownership rights is possible. As a rule, they include the ability to use, manage and own property. Such partnership takes place at the conclusion of concession agreements. In addition, provided for equity or shareholder participation in government agencies. Public-private enterprises are an expression of a higher level of capital integration through cooperation between commercial organizations and government.
Key Features
The structure and models of public-private partnerships are very diverse. However, there are a number of characteristic features that make it possible to distinguish this institution into an independent category. First of all, it is worth noting that PPP is created as a formalized cooperation of commercial and state structures. Entering into such cooperation is aimed at achieving specific goals and is based on the respective agreements of the participants. Analyzing foreign experience, the following features of the partnership can be noted:
- Certain, often long, contract durations. They can be 10-20 years, and in cases of concessions - up to 50. State contracts are formed for a specific object. For example, it can be a road, port, infrastructure. Order completion is limited to an exact date.
- Specific types of program financing. Implementation of projects is carried out at the expense of investments of commercial organizations supplemented by resources of state funds. There is also a joint investment of several participants.
- Mandatory presence of competition. In such circumstances, for each contract or concession agreement there is a struggle between potential participants.
- Responsibility between the parties is distributed in specific forms. The state defines goals from the standpoint of public interest, sets quality and cost indicators, monitors the implementation of programs. At the same time, the commercial structure assumes responsibility for operational activities at various stages - development, financing, management, construction, operation, and the practical provision of services to users.
- Risks between the parties are divided by agreement.
Contribution of participants
Commercial structures provide professional experience, financial support, effective management, efficiency and flexibility in the decision-making process, show the ability to innovate. As part of the partnership, innovative methods of work are being introduced, equipment is being modernized, and technologies are being improved. In the process of cooperation, new forms of production organization appear, companies are formed, including those with foreign capital, effective cooperation with contractors and suppliers is formed. At the same time, the demand for well-paid and highly qualified employees is growing in the labor market.
The state, in turn, provides certain rights of the owner, provides tax breaks, guarantees, financial and material resources. The authorities, in the framework of cooperation with commercial structures, have the opportunity to realize their direct functions - control, regulation, observance of the public interest. In the course of partnership development, the state can smoothly shift emphasis from specific problems of construction and operation of facilities to administrative control tasks. Emerging business risks are redistributed towards commercial structures. The social significance of the partnership is that as a result, society wins as a user of higher quality services.
Local cooperation
Of particular importance are public-private partnership programs in municipalities. Cities and towns bear the main burden of implementing socially significant tasks in various areas of management. These areas, in particular, include transport, utilities, environmental protection, housing, gas and energy. A key problem faced by local authorities is the lack of funding. In this regard, raising capital of commercial structures, in accordance with 224-FZ, is becoming common practice.
Administrative Contracts
In world practice, various forms of cooperation between government and commercial companies have been adopted. One of them is government contracts. They represent administrative contracts that are concluded between a commercial organization and a governing body (federal, regional, local). The most common public-private partnership in the social sphere, in the field of supply of products for municipal or state needs, management, technical assistance. In administrative contracts, ownership is not granted to a commercial organization. At the same time, the risks and expenses fall entirely on the state. The interest of the commercial structure is that, in accordance with the contract, it receives the right to the agreed part of the income or collected payments. As practice shows, such agreements can not only increase the prestige of the company, but also are guaranteed to receive possible preferences and benefits, steady profits and take a market position.
Leasing agreements
Within the framework of cooperation, transactions on transferring property in municipal or state ownership to a commercial structure for use for a fee are common. It can be a construction, building, premises, land. Rent in the traditional form involves the repayment of the subject of the agreement. In this case, the proprietor retains the authority to dispose of the property, and is not granted to the commercial structure upon conclusion of the contract. In some cases, the organization may redeem the building, premises or land. Leasing in the form of leasing always implies such a condition.
Concession
This form of public-private partnership is currently becoming more widespread. The peculiarity of the concession lies in the fact that municipal or state bodies, in the framework of cooperation, remain the full owners of the property, authorize the commercial association to perform the functions specified in the contract for a certain period. For this, the company is transferred the legal capabilities necessary to ensure the functioning of the concession facility. For the operation of the property, the commercial structure pays a fee in the manner and on the conditions established by the agreement. In this case, the ownership of the product is transferred to the user.
Features of the agreement
Concession has the following symptoms:
- The subject is always municipal or state property. It may also be the monopoly activity of the state or the Moscow Region.
- An authorized municipal or state agency acts as one of the parties to the agreement.
- The purpose of the concession is to meet social needs.
- The basis of the relationship is the agreement.
- Concession involves the repayment of the subject of the contract.
When concluding contracts, leasing agreements, the state or municipality acts as a subject of civil law. Accordingly, the provisions of the Civil Code are sufficient for their effective operation. In concession relations, the state is primarily an institution of public law. In this role, it not only transfers part of the authority to commercial companies, but also delegates a certain share of power functions. Such provision is allowed only in accordance with the regulatory enactment. Among the public legal signs of the concession, the consolidation of public interests in them, the representative of which is the state, should be highlighted. By agreement, the commercial structure is obliged to obey them, that is, to ensure the continuity of services, equal tariffs, general accessibility, and eliminate consumer discrimination.
Concession Areas
The most popular in world practice, such agreements have received in infrastructure sectors. In these sectors, intensive investment and the influx of highly qualified personnel are necessary. Currently, there are three main types of concessions:
- On existing facilities.
- For the construction or modernization of infrastructure.
- Transfer of municipal or state property to management.
Within the framework of these types, forms of concession agreements are possible, based on a different combination of competencies, as well as the permissible limits of a specific investment and entrepreneurial activity.
The situation in Russia
In the Russian Federation, the normative act on concession agreements entered into force in 2005. However, at present, such cooperation has not been developed. The main reason for this situation, experts call the lack of protection of user rights. The risk borne by a commercial organization relating directly to its activities under the agreement is aggravated by the existing obligation to pay a high concession fee. However, the penalty for violation of the terms of the agreement by the user in the regulatory act is not established. Currently, discussions are continuing on amendments to the law that could stimulate the emergence of concession relations in Russia.
Product Sharing Agreement
This form of relations between commercial structures and government agencies has some features of a concession. However, this agreement has several features. The differences are primarily in the configuration of property relations. According to the concession agreement, the rights to the products created by the private partner remain with him. Under the agreement on the division of the results of activities, only a part of them remains to him. The procedure and conditions for the transfer of rights are stipulated by a special agreement.
Additionally
The most popular public-private partnership in education. So, work is currently underway to introduce a dual training system . This form of PPP is spreading in St. Petersburg and Moscow. It involves the involvement of manufacturing companies in the process of training highly qualified employees. In this case, training is carried out on the job.
Another common form of interaction is public-private partnerships in healthcare. It is mainly about recreation facilities, the spa sector. Over the past few years, forms of public-private partnerships are developing rapidly. , , . , , - . . , , , .