PPP Acceleration Act

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Basic data
Title: Law to Accelerate the Implementation of Public Private Partnerships and to Improve the Legal Framework for Public Private Partnerships
Short title: PPP Acceleration Act
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Budget law , tax law , competition law , public procurement law
Issued on: September 1, 2005
( BGBl. I p. 2676 )
Entry into force on: September 8, 2005
GESTA : E086
Please note the note on the applicable legal version.

The PPP Acceleration Act is a German article law . It should accelerate the implementation of public-private partnerships (PPP or PPP) and improve the legal framework. Because business consultants had great opportunities to exert influence in the drafting phase , it is also a target for lobby critics .

Content of the law

The Article Act introduced the competitive dialogue ( § 6a VgV ) between competitors and the public client. It rearranged the term “service contract” ( Section 99 (6 ) GWB ) used in public procurement and antitrust law . The allocation of tolls for so-called F models ( FStrPrivFinG ) has been revised. In addition, the Federal Budget Code ( § 63 BHO) was changed to the effect that federal real estate, which is absolutely necessary for the fulfillment of tasks, can be sold, provided that the fulfillment of tasks is still ensured. At the same time, the changes required by the private sector in the Land Transfer Tax Act , the Land Tax Act and the Investment Act have been discontinued.

Origin of the law

Business advisors write on the draft law

The long-time monitor employees Sascha Adamek and Kim Otto reported on their research on lobbying influence on the law both in the ARD policy magazine (picture: broadcast logo) and in their book "Der gekaufte Staat".

The SPD - Bundestag faction commissioned in December 2002, their deputies Michael Bürsch with the formation of a PPP Working Group (later working group "PPP Acceleration Law"), which was commissioned on 4 October 2004 with the drafting of a bill to facilitate the privatization of public services. In this planning contract it is said that with an expert opinion by PricewaterhouseCoopers and Freshfields Bruckhaus Deringer for the Federal Ministry of Transport, Building and Housing , detailed proposals "are already in place," which the legislature and the federal government must take up forcefully . " (Efforts to promote PPP in Germany have been going on for a long time. For example, in April 2001, Federal Chancellor Gerhard Schröder set up a PPP working group at the inter-ministerial level).

Bürsch told the authors (Adamek and Otto) of the book "Der gekaufte Staat" that although a draft law usually comes from the Ministry of Finance , the officials there are "not particularly impressed by the whole PPP matter," which is why he joined his working group on the large scale I also invited consultants from the business world. In an article on the pragmatic handling of lobbying, Bürsch writes that "because of the lucrative business that private investors in public-private partnerships attract, the PPP Acceleration Act would be of great interest to lobby associations." International law firms and business consultants as well as lobby associations from the banking and construction sectors then also participated in the working group. Representatives from politics and ministries were outnumbered. For the book authors Adamek and Otto, given the numerical distribution of the working group members, it is therefore not surprising that such a privatization-friendly law comes out. NGOs that are critical of the privatization of public tasks were not represented at all.

Michael Bürsch is of the opinion that all relevant interest groups have been invited to the working group . Bürsch counters the accusations of lobbying: "A few critics who are resistant to reality" would stubbornly assert to this day, "Parliament had the PPP acceleration law written down directly by law firms and lobbyists and then nodded. You are always good with such criticism, you can solve it at the broad public the reflex to ascribe moral depravity to the political system and corruptibility to the individual MP. " He defends the involvement of business representatives in the legislative phase: politics without lobbying would lead to the "spaceship Bundestag" passing laws "which would only hit the hard ground of social reality after their adoption".

One of the lobbyists involved spoke relatively openly about his own activities in preparing the law, see the article on Dr. Cornelius Kleinlein . He confirms that those involved would of course have had a lot more opportunities to exert influence in the drafting phase.

The law that was developed in the working group was later also passed.

Members of the SPD working group "PPP Acceleration Act"

Within the PPP working group there was a working group on procurement law. SPD MP Hubertus Heil (photo) took over the management .
The Federal Association of German Banks also worked on the law in the PPP working group. He would like to see stronger political will for PPP projects and, among other things, calls for an end to the different tax treatment of public and private sectors. (Photo: Deutsche Bank twin towers )

40 representatives from politics and ministries, including

and 60 consultants from various business organizations:

Controversy about the influence of an external employee in the ministry

The Main Association of the German Construction Industry offered numerous opportunities to help shape the law. He would like politicians to use PPP models more often when expanding the trunk road network. (Image: A8 )

Well over a year before the law was passed, the Federal Ministry of Transport established the PPP Task Force, which was transferred to ÖPP Deutschland AG at the end of February 2009 . The PPP Task Force had set itself the goal of promoting PPP in Germany. Here, too, Adamek and Otto criticize: At the center of their lobbying allegations is Susanne Vollrath, an external employee at the Federal Ministry of Transport, Building and Housing. As part of the PPP Task Force, she was supposed to help develop award standards for municipalities, states and the federal government - paid for by the Main Association of the German Construction Industry. The critics are of the opinion that it was certainly an advantage for the law that Ms. Vollrath sat in the appropriate position. Heiko Stiepelmann, the managing director of the employee's employer, confirms that one is so much more likely to be involved in the development of PPP measures. The main association of the German construction industry has an employment contract with the ministry, Mrs. Vollrath works in the interests of the Federal Republic of Germany.

The federal government replied to the critics that the presentation was one-sided and that the motives for the exchange of information and experience were not presented correctly. The Federal Ministry of Transport, Building and Urban Development is reliant on intensive communication with representatives of the economy for specific technical issues and in the area of ​​further developing financing options in connection with public-private partnerships. The tasks of the Federal Ministry of Economics and Technology also required contact with companies and associations at all levels. For this reason, the ministry has been exchanging personnel with commercial enterprises and associations for more than 30 years.

Law adoption

The law was passed on June 30, 2005 by the German Bundestag with the votes of the parliamentary groups of the SPD and Bündnis 90 / Die Grünen as well as with the abstention of the parliamentary groups of the CDU / CSU and the FDP. In the Greens, however, there were also six MPs who were only able to approve the PPP Acceleration Act with serious reservations due to an "inadequate legislative procedure" and "deficiencies in content". The Federal Council approved the law in its session on July 8, 2005.

Key points of the law with content-related pros and cons

PPP project Rathaus Gladbeck : The city has signed a contract with a building contractor for a period of 25 years for the construction, operation and rental of a modern extension.
  • The state's ban on privatizing property has been overturned.
  • Pro: The way for PPP as an alternative procurement route must be paved.
  • Cons: It will be possible to "sell" public buildings.
  • When comparing costs, a risk surcharge is added to the conventional offers.
  • Pro: Conventional construction measures would often be more expensive than planned. So there would be a fairer comparison.
  • Cons: PPP should be calculated artificially.
  • Pro: The competition should be guaranteed and the dialogue about complex aspects of the order with all companies involved is necessary.
  • Cons: Especially with large orders, there are only a few offers, so there can be no competition. The dialogue carries the risk of procedural errors and unequal treatment.
  • The authority of the toll approval is transferred from the federal government to the states.
  • Pro: There is no argument in the SPD working group's explanatory memorandum as to why the competence is transferred.
  • Cons: The fragmentation of the federal trunk road administration by the contract administration will be cemented, since 16 state building authorities will be responsible in the future. Because there are only a few planned projects, it is not necessary.

The general discussions about pros and cons can also be found in the article on PPP .

Efforts for further PPP-friendly laws

Important information is missing from this article or section. Help Wikipedia by researching and pasting it .

Immediately after the law was passed, calls for further measures to promote PPP began. For example, the then President of the Federal Association of Industry Jürgen Thumann called for a national strategy to be created in September 2005 for a right of way for privatization or partial privatization. The demands were heard: The Federal Ministry of Transport reported that the black and red federal government had started to work out a "PPP Simplification Act" (PPP Acceleration Act II).

literature

Web link

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  1. ↑ a b c d e f g h i j k l m n (p. 123 ff.) Sascha Adamek and Kim Otto: The bought state: How corporate representatives in German ministries write their own laws. 1st edition. Kiepenheuer & Witsch , Cologne 2008, ISBN 978-3-462-03977-1
  2. ↑ Secret stakeholders: lobbyists in federal ministries ( Memento of January 4, 2014 in the Internet Archive ) (PDF; 27 KB), manuscript of the monitor broadcast of April 3, 2008
  3. ↑ a b c d e f g h i j k l The PPP Acceleration Act - a project of the SPD parliamentary group (PDF; 589 KB), SPD background paper from September 2005 (on the website of the Institute for Construction Management at the University of Stuttgart)
  4. ↑ Small border traffic with lobbyists Article by Michael Bürsch in the journal Berliner Republik (issue 5/2006)
  5. ↑ (p. 22–24) Page no longer available , search in web archives: Public Private Partnership - Opportunity for the modernization of infrastructure and administration Brochure of the Federal Association of German Banks, January 2004@1@ 2Template: Dead Link / shop.bankenverband.de
  6. ↑ Collective bargaining parties of the construction industry on infrastructure policy of the public sector ( Memento of the original from December 17, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Joint press release from the Main Association of the German Construction Industry, the Industrial Union of Construction, Agriculture and Environment and the Central Association of the German Construction Industry, November 5, 2009 @1@ 2Template: Webachiv / IABot / www.ppp-plattform.de
  7. ↑ Answer of the Federal Government (PDF; 107 KB) to a small request from the Greens parliamentary group on "Cooperation of employees of associations and commercial enterprises in federal ministries and subordinate federal authorities", December 4, 2006
  8. ↑ a b c Declaration on PPP Joint letter from six green members of the Bundestag, June 29, 2005
  9. ↑ Page no longer available , search in web archives: Work on the "PPP Simplification Act" (PPP Acceleration Act II) started. Report on the website of the Federal Ministry of Transport@1@ 2Template: Toter Link / www.bmvbs.de