Intragroup contracts in the Public Sector Contract Law –

The authorized regime for contracting public sector entities that aren’t contracting authorities continues to represent the “ugly duckling” of contracting. Incorporating the regulation of articles 321 and 322 has given rise to a misunderstanding of what the regime of their “public” contracts is, pretending to use the worldwide regime of the LCSP, even if, by their very nature, they don’t have anything to see. We’re speaking, principally, of economic firms that compete available in the market.

It could possibly, from the outset, be mentioned whether or not it’s crucial for the Public Sector Contract Legislation itself to arrange a particular regime for these entities, insofar as Article 1 of Directive 24/2 expressly refers solely to contracting authorities. . Particularly, it offers that: “This Directive establishes the foundations relevant to contracting procedures by contracting authorities with regard to public contracts and mission tenders, (…) ”. Once more, we’re confronted with a rule that restricts greater than what European legislation requires states.

As I already identified on one other event (right here and within the video you can see here) With this method, what’s being finished is to use a dangerous regime from the angle of competitors to entities that wish to combat freely available in the market. The general public firm is public, however earlier than all this, it’s a firm whose goal is to acquire advantages beneath the identical situations as within the sector.

In truth, we are able to suppose that it’s yet one more manifestation of that distorted magnifying glass of competitors legislation referred to by Sosa Wagner and Fuertes López. A distorted imaginative and prescient that seems repeatedly within the LCSP.

Paradoxical conditions are the order of the day. Suppose, for instance, within the case of the Put up Workplace. Not solely does it compete with Amazon, however it additionally does so with firms whose house owners are public firms of their respective nations (SEUR is owned by LA POSTE, GLS from Royal Mail or CTT from CTT Portugal) and that right here play as personal operators. Past one other actuality, right here these firms play with a place of regulatory benefit.

Probably the most crucial features is that of self-organization, which incorporates the creation of subsidiary firms. From the Advisory Board Report 33/2020 The potential of immediately awarding contracts to subsidiaries had been restricted. I don’t consider that the reform of article 33 LCSP, operated by the Final Provision 8 of RDL 17/2020 of “measures to help the cultural sector and of a tax nature to face the financial and social influence of COVID19 would give solution to a change within the regulation of entities that aren’t contracting authorities.

In truth, it could possibly be completely understood that there have been two authorized enterprise regimes that associated the father or mother entities with the subsidiaries: on the one hand, there was that of the contracting authorities, to which articles 31 et seq. Of the LCSP apply, and the opposite , that of entities that aren’t contracting authorities (and that shouldn’t be within the LCSP) derived from their very own directions, by software of article 321, which didn’t represent commissions however collaborative intra-group agreements.

The detrimental resolution that the Advisory Board gave, incomprehensible for my part, since they’re completely totally different conditions, motivated the inclusion of a sixth part in article 321 LCSP, by the Final Provision 40 of the Law of General State Budgets for 2021, whose tenor is the next:

6. Contracts between two industrial firms belonging to the general public sector that don’t maintain the character of contracting authority shall be excluded from the appliance of this Legislation, so long as each one of many following situations are met:

a) That the contracting firm immediately or not directly holds all the contractor’s share capital or vice versa, or {that a} third firm, additionally from the general public sector, that doesn’t have the character of contracting authority immediately or not directly holds possession 100% of the capital inventory of the primary two.

b) That the contracts are aimed on the acquisition of products or the availability of providers which are crucial to hold out the industrial exercise of the company goal of the contracting entity.

c) That the contracts don’t distort free competitors available in the market.

For the needs of the provisions of the previous paragraph, the ministerial division or physique that corresponds to the supervision of the contracting firm will request a previous report from the Nationwide Markets and Competitors Fee or, the place applicable, from the competitors authority. corresponding autonomous neighborhood that analyzes the precise contracts or common classes of contracts of comparable traits that the businesses plan to signal. The report shall be issued inside a most interval of twenty enterprise days.»

In precept, you possibly can suppose that the issue is solved. However, after we discover, and I’m going to letter c) of the principle, with which the principle appears to suppose that there could also be a distortion of competitors, the issues start.

Certainly, the issue is prior. What needs to be requested is whether or not there actually is a market in the sort of authorized relationship.

And the reply can solely be detrimental. There may be not, as a result of the father or mother firm has the means to supply the service and due to this fact there isn’t a want for the contract, because the components of article 28.1 LCSP is included: “Public sector entities could not enter into contracts apart from these which are crucial for the success and realization of its institutional functions ”. Authorized persona can’t represent an working handicap.

I consider that it may be affirmed with out worry of being incorrect that basically, what we discover ourselves is confronted with an issue of self-organization for operational causes of a industrial, public firm.

Or put one other method, the relationships that Amazon has with its subsidiary Amazon Logistics are privileged in Spanish legislation (for not having to request a contest report) to those who Correos has with Correos Telecom (the place the duty to request the report appears be deduced from the principle.

Besides that the oblique resolution being proposed is to additional weaken the Spanish public sector and search focus of public firms with differentiated enterprise strains.

The issue, as I’ve identified on different events, is one in every of idea: to consider the general public firm or not. When doubts come up, I consider that it’s best to resort to the constitutional textual content itself, whose article 128.2acknowledges public initiative within the economic system. One thing inherent, alternatively, to the custom of the social state.

The general public firm wants an satisfactory authorized regime to compete in liberalized sectors. If not, the entity broken by practices opposite to free competitors would be the public firm. By the best way, an intensive examination of the safety regime for public firms in Europe wouldn’t damage.

The general public firm regime, in the long term, exhibits that what’s at stake is whether or not we consider the general public firm.

This subject of intra-group contracts is only one extra subject. I may carry up right here features of the issue that have an effect on transparency, the regime of company acts within the strict sense even that of personnel with inexplicable alternative charges and large difficulties for the administration of the wage invoice (whose mere software to the corporate public beneath present situations is unreasonable).

If we consider it, we should enable it to compete actively available in the market. Its advantages are advantages for all as a result of its majority shareholder is the State. If we don’t consider it, if we configure its authorized regime as an impediment course we’re doing a disservice to firms, their staff, but additionally to the consideration of the Spanish economic system on this planet. And right here it’s essential to take a terrific leap ahead.

To do that, we should begin by forgetting the neoliberal mannequin of the dangerous privatizations that happened within the 90s of the final century and which have made Spain lack a related public firm in strategic sectors corresponding to power or telecommunications. Neither France nor Germany nor Italy have made this withdrawal from collaborating in these financial sectors.

And, in fact, the COVID19 pandemic has proven how public help is supplied with none advanced as a result of it’s the very competitiveness of the economic system that’s at stake. The notion of the phenomenon in our nation is meaningless. It’s presumably not more than a minor consequence of being one of many nations in Europe with the least public spending weighted in accordance with GDP and the place we’ve got a better advanced earlier than addressing the function of the corporate.

Due to this fact, the intention is to strengthen the general public firm to compete in liberalized markets. No extra no much less. With out advanced.

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