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Monday 21 June 2021
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”The State is a mere trading partner”

Is the State ready to give up its sovereign powers and other ones and delegate some to private business? If the issue is a matter for debate almost everywhere, especially in the European Union countries and those of the Maghreb and Tunisia, this is not the case in Great Britain where the State is dealt with as a simple trading partner and can be involved at the judiciary level as a common litigant.

Martin Trybus is Professor of European Law at the University of Birmingham and  the Director of the Institute of European Law. He is a member of the Public Contracts in Legal Globalisation Network and the Procurement Law Academic Network (PLAN). . He recently participated in an international symposium held in Tunis by the University of Tunis El Manar on “Changes in Public Contracts” Interview:

Public / private partnership is invading areas where the State is used to be the only law maker and standards producer. What is currently the situation in EU countries as far as the law governing public contracts is concerned?
This symposium gave me the opportunity to outline the legal system of contracts and public / private partnership experience in the UK and learn about other countries.
The UK is probably the first EU country that implemented this PPP partnership. I have reviewed the legal context characterized by the impact of the EU as well as by directives and model contracts knowing that Britain initiated this partnership in the early 90s. The British Ministry of Finance set up in 2000 a structure composed of 80 officials involved in PPP projects in England, Scotland, Wales and Ireland. The number of projects governed by this system is over 600 for a value exceeding 50 billion pounds.

These projects cover almost all areas: highways, bridges, tunnels, airports, subways, but also hospitals, schools, university hostels, prisons and even national defence, for example, the repair of tanks which is no longer secured by the army but is the subject of a public / private partnership.  In this regard the case study pertains to prisons. On this record, we have committed many mistakes, but learned a lot.

What are the mechanisms of this partnership and how the State is acting in this respect, in its capacity of a body whose powers are not governed by common law or as a mere trading partner?

Public contract as a legal concept does not exist in the UK law. The state can only be a partner; it is treated as a private partner. It has no privilege, which means that the contract is an essential step in the process, because, so far, i.e. up to this point, it has more or less a public scope i.e. subject to European influence which itself is determined by French influence. Once closed, the contract is subject to common law which is then enforceable. The contract is then governed under the provisions of Common Law. Normally, the texts governing the matter are the decisions of courts, i.e. the law, unlike other EU countries and the Maghreb also where the texts governing the contract are the codified legal provisions.

Precisely, what is your assessment of the legal environment of public contract in Tunisia?

For the first time, I am happening to deal with Tunisian law on the issue, but it seems that the legal framework is similar to that in force in France. It is dealt with a public law phenomenon and the problems are similar to those of French law. And this is not the case in England.

How do you predict the future of public contract and more specifically the PPP amid globalization insofar as development projects involve partners from different countries operating under different laws?

I mark as different the situation before the international crisis and post crisis. Before, there was globalization. The State did not have the necessary funding to launch projects. After the crisis, we will hark back to the status of classical public contracts including less concession contracts.

All will depend on the duration of the crisis. Once the latter is over, we will go back to the previous situation, i.e. that of concessions because of the lack of State financial resources available to the State.

With regard to globalization and its impact on Tunisia and the Maghreb countries in general, it will be essential to include the neighbourhood policy initiated by the European Union which is keen to develop good-neighbourly relations with the Maghreb. In this context, it focuses on governance which should cover many areas, and public contracts will feature prominently. Morocco has embarked on this path and I think that Tunisia will do the same.

Do you think that the State, in its accepted meaning, will always be jealous of its sovereign prerogatives, sticking to them as best it could while continuing to engage in various forms of concessions, delegations…?

It is extremely important to identify projects and areas where the State intends to be the master, i.e. those where its powers are not transferable. This will depend on the nature of the project. The point is to decide whether the powers are transferable or not.


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