EX ANTE И EX POST КОНТРОЛА ЈАВНОГ ИНТЕРЕСА У СПОРАЗУМИМА О ЈАВНО-ПРИВАТНОМ ПАРТНЕРСТВУ
EX ANTE AND EX POST CONTROL OF THE PUBLIC INTEREST IN PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS

Summary/Abstract: The paper analyzes the provisions of public-private partnership agreement (hereinafter: the “PPP”) in the context of control of the public interest in the process of preparing and implementing PPP projects. PPP agreements are a mechanism for defining rights and obligations of public and private partners in the process of realization of a particular PPP project. In spite of being defined as partnership, public and private interests largely remain competitive. However, in case it is not possible to achieve both interests at the same time, the public interest is deemed to have priority. The proper implementation of the supremacy of public interests over the private ones calls for an appropriate contractual definition of conditions and manner for such implementation. The methodology for exercising control of the public interest in PPP projects through agreements on public-private partnership has two aspects. The first aspect is to provide verifiable parameters of legal, economic and technological conditions, as well as the procedure for selecting the best bid for the realization of public-private partnership (ex ante methodological aspect); these conditions are the basis for future PPP agreement. Ex ante methodology has to provide instruments for control of the public interest through pre-established mechanisms aimed at verifying whether the private partner has fulfilled the agreement. If such verification is not possible or if it is considered unreasonable (either financially or otherwise), it may raise an issue whether the public-private partnership is an adequate modality for implementation of the project aimed at promoting the public interest; it further implies that the public partner should resort to other options (employing “internal” resources or taking a loan for financing the projects of public interests). The second aspect is that the PPP agreements are to provide for the proper implementation of the elements that ensure some flexibility in implementing the agreement as well as an effective control of such implementation (ex post methodological aspect). PPP agreements should provide a mechanism for adjusting their contents to changed circumstances, i.e. the social, legal and economic context which pervades the preparation, implementation and realization of the specific PPP project. Among other factors, this flexibility rests on mutual trust and cooperation of the contracting parties. Ultimately, in the context of control over exercising the public interest, the methodological approach of the PPP agreement essentially lies in preventing the public partner to succumb to the temptation of adopting the simplest available solution. Instead, it is necessary to clearly define the expectations which the public body as a title-holder of public interest has in regard of specific PPP projects, and to limit the responsibility of the public actor. The success of a PPP agreement in each particular case depends on the extent to which the agreement provides for adequate treatment of these presumptions.

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