In the economies of many countries a special formrelations of commercial enterprises and authorities. To denote this interaction, the concept of public-private partnership is used. Let us consider it in detail below.
General information
The state and private business form an alliance forimplementation of projects of public importance, in a variety of areas of activity. The interaction of power and commercial structures has now reached a new level. At present, it is fixed at the legislative level in 224-FZ. These relations can be fully regarded as an integral feature of a mixed economy.
Features
Development of public-private partnershipspromotes the formation of basic models of financing, management methods, property-related relationships. In this process, a number of issues concerning the redistribution of powers acquire a fundamental importance. They arise as an inevitable consequence of the expansion of interactions between commercial structures and authorities. Some experts believe that in many cases public-private partnerships are, to some extent, privatization or its absolute alternative. Such an opinion, for example, speaks about concessions. Meanwhile, it is worth noting that public-private partnership is really an institutional way of transforming the spheres of activity that traditionally belong to the authority. However, the instruments used in cooperation do not lead them beyond the framework of state regulation.
Redistribution of powers
Public-private partnerships arecooperation, involving the provision of not all legal opportunities for which the sovereign right of the owner in economic circulation disintegrates, but only a certain part thereof. It is about the right to manage, change the capital value of material values, the assignment of certain powers to other persons. A fairly extensive experience of redistribution of legal opportunities between the authorities and commercial structures is available in the areas of public services, namely, infrastructure industries. They historically formed the traditions of the state's transfer of certain basic powers to private business. The authorities are responsible to society for the continuous receipt of public goods. This is determined by the desire to preserve certain branches of state property. At the same time, private enterprises are characterized by high mobility, efficient exploitation of resources. In addition, commercial structures tend to innovate. Public-private partnership is a way to take advantage of both types of property without profound changes in society.
The participation of government
The state remains under any conditionsparticipant in public law relations. This circumstance is also key for civil legal relations in which power as a sovereign is not an ordinary subject of law. In this regard, we can not talk about the initial equality of the private and public partners. It will come only if, on the basis of the sovereign rights of the authorities, the terms and specifics of the implementation of civil legal relations will be defined in the agreement on interaction. In other words, the state will become a special subject. This is expressed primarily in the fact that the government itself establishes the legal framework in which all other participants must act. In addition, it retains its managerial and administrative functions, even if it enters into the principle of equality in relations. This is due to the authority to issue administrative acts. They, in turn, ignore this equality. Initially, it is assumed that the state enters into civil circulation not to meet its own specific interests, but for the most effective implementation of public authority.
The role of power
The projects approved in the framework of PPP representis not just a mix 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 the bearer of socially significant goals and needs. In doing so, it performs the control function. Secondly, as a participant in the economic turnover, the state is interested not only in the high results of partnership, but also in ensuring its commercial effect. In addition, like any normal entrepreneur, a participant in such a relationship tends to maximize profits. In this regard, in the commercial interests sector between the parties is quite appropriate, and in some cases it is necessary to trade about the division of probable risks, the nature of the transferred powers, the terms of their provision and use.
Property Relationships
As international experience shows, the degreeparticipation of the 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 state contracts for the supply of goods or services for state needs, for management, for providing technical assistance and so on. In this case, property rights are clearly separated. There are other forms in which such a public-private partnership is manifested. Examples of this are production sharing agreements and leasing agreements. Within the framework of interactions, a partial transfer of a number of proprietary rights is possible. Typically, they include the ability to use, manage and own property. Such a partnership takes place when concluding concession agreements. In addition, there is an equity or shareholder participation of an entrepreneur in state structures. Public-private enterprises are an expression of a higher level of capital integration within the framework of cooperation between commercial organizations and authorities.
Key Features
Structure and models of public-privatepartnerships are very diverse. However, there are a number of characteristic features that make it possible to single out this institution in an independent category. First of all, it should be noted that PPP is created as a formalized cooperation of commercial and state structures. The entry into such cooperation is aimed at achieving specific goals and is based on the relevant arrangements of the participants. Analyzing foreign experience, we can note the following features of the partnership:
- Certain, often long periodsactions of contracts. They can be 10-20 years, and in cases of concessions - up to 50. Government contracts are formed for a specific object. For example, it may be a road, port, infrastructure. Order execution is limited to the exact date.
- Specific types of funding programs.The projects are implemented through investments by commercial organizations, supplemented by the resources of state funds. There is also a joint investment of capital of several participants.
- Mandatory presence of competition. In such conditions, for each contract or concession agreement there is a struggle between potential participants.
- Ответственность между сторонами распределяется в specific forms. The state sets goals from the standpoint of public interest, sets quality and cost indicators, and monitors program implementation. At the same time, the commercial structure assumes responsibility for operational activities at various stages - development, financing, management, construction, operation, practical provision of services to users.
- Risks between the parties are divided on the basis of agreements.
Contribution of participants
Коммерческие структуры обеспечивают 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, technologies are being improved. In the process of cooperation, new forms of production organization appear, companies are formed, including with foreign capital, effective cooperation is formed with contractors and suppliers. At the same time, the demand for well-paid and highly qualified employees is growing in the labor market.
The state, in turn, providescertain powers of the owner, provides tax breaks, guarantees, financial and material resources. The power in the framework of cooperation with commercial structures gets the opportunity to realize their direct functions - control, regulation, compliance with public interest. In the course of partnership development, the state can smoothly shift accents from specific problems of construction and operation of facilities to administrative control tasks. Occurring business risks are redistributed towards commercial structures. The social significance of partnership lies in the fact that as a result society benefits as a user of higher quality services.
Collaboration at the local level
The particular importance of the public-private programpartnerships are in the municipalities. Cities and townships bear the brunt of the implementation of socially significant tasks in various areas of business. These areas, in particular, include transport, housing and public utilities, environmental protection, housing, gas and energy supply. The key problem faced by local authorities is the lack of funding. In this regard, the attraction of capital of commercial structures, in accordance with 224-FZ, is becoming common practice.
Administrative contracts
In world practice, various forms are takencooperation authorities and commercial companies. As one of them are government contracts. They are 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 supply of products for municipal or public administration, management, provision of technical assistance. In administrative contracts, ownership is not granted to a commercial organization. At the same time, risks and expenses are fully borne by the state. The interest of the commercial structure is that, in accordance with the contract, it receives the right to a specified part of the income or payments collected. As practice shows, such agreements allow not only to increase the prestige of the company, but also guaranteed to receive possible preferences and benefits, stable profits and take a position in the market.
Leasing agreements
Within the framework of cooperation, transactions onthe transfer of property in municipal or state property to a commercial structure for use for a certain fee. This may be a building, building, room, land. Lease in the traditional form involves the return of the subject of the agreement. In this case, the authority to dispose of the property remains with the owner, and the commercial structure is not provided at the conclusion of the contract. In some cases, an organization may purchase a building, room or land. Leasing in the form of leasing always implies such a condition.
Concession
This form of public-private partnershipbecoming increasingly widespread. The peculiarity of the concession is that the municipal or state bodies within the framework of cooperation remain full owners of the property, authorizing the business association to perform the functions stipulated in the contract for a certain period. For this, the company is transferred the legal opportunities necessary to ensure the functioning of the concession facility. For the exploitation of the property, the commercial structure shall pay in the manner and on the terms established by the agreement. The ownership of the product is transferred to the user.
Features of the agreement
The concession has the following features:
- Municipal or state property always acts as a subject. They can also be a monopoly activity of the state or MO.
- One of the parties to the agreement is an authorized municipal or state body.
- The purpose of the concession is to meet public needs.
- The agreement is the basis of the relationship.
- Concession involves the return of the subject of the contract.
When concluding contracts, leasing agreementsthe state or municipality acts as a subject of civil law. Accordingly, for their effective work enough provisions of the Civil Code. In concessionary relations, the state is primarily an institution of public law. In this role, it not only transfers a part of powers to commercial companies, but also delegates a certain share of power functions. Such provision is allowed only in accordance with the regulatory act. Among the public signs of a concession, it is necessary to single out the consolidation of public interests in them, the representative of which is the state. Under the agreement, the commercial structure is obliged to obey them, that is, to ensure the continuity of the provision of services, equality of tariffs, accessibility, exclude consumer discrimination.
Areas of concession
The greatest popularity in the world practice suchagreements received in infrastructure industries. Intensive investment and the influx of highly qualified personnel are needed in these sectors. Currently, there are three main types of concessions:
- On already operating objects.
- On the construction or modernization of infrastructure.
- The transfer of objects of municipal or state property in the management.
Within these types of possible forms of concession agreements, based on different combinations of powers, as well as the permissible limits of a particular investment and business activities.
The situation in Russia
In the Russian Federation regulation on concession agreementsentered into force in 2005. However, at present such cooperation has not been developed. Experts say that the main reason for this situation is the lack of user rights protection. The risk incurred by a commercial organization directly related to its activities under an 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 is not established in the regulatory act. 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 relationship between commercialstructures and government agencies have some features of the concession. However, this agreement has a number of features. The differences are primarily in the configuration of ownership relations. Under a concession agreement, the rights to products created by a private partner remain with him. Under the agreement on the division of performance results, only a part of them remains. The procedure and conditions for the transfer of rights are stipulated by a special agreement.
Additionally
The most popularpublic-private partnership in education. So, at present, work is underway to introduce a system of dual education. This form of PPP is spread in St. Petersburg and Moscow. It involves the involvement of manufacturing companies in the process of training highly qualified employees. Training in this case is carried out without interrupting production activities.
Another common form of interactionadvocates public-private partnership in health care. It is mainly about the objects of recreation, sanatorium-resort sector. Over the past few years, forms of public-private partnership have developed rapidly. Initially, concession agreements were used in the construction of parking lots, highways, and provision of heat supply. Today, cooperation is becoming increasingly widespread in the defense field, the transport services sector, and the cultural and educational sphere. During the implementation of programs, various mechanisms of interaction between the authorities and commercial organizations are used. They are differentiated in accordance with the scope of powers of ownership, financial obligations of participants, the principles of risk sharing, as well as responsibility for the performance of certain types of work.
