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«COMPILATION OF THE RESPONSES TO THE UNCTAD QUESTIONNAIRE Part I: Public Monopolies, Concessions and Competition Law and Policies COMPILATION OF THE ...»

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4. ¿Qué sectores de la economía están exentos de la aplicación del derecho sobre la competencia? ¿Qué sectores o que tipo de concesiones son objeto de una reglamentación específica? ¿Las concesiones están sujetas al derecho nacional sobre la competencia?

En Argentina no hay excepciones por sectores de actividad económica para la aplicación de la Ley de Defensa de la Competencia. Por lo tanto, sus alcances se extienden incluso a los sectores privatizados con marcos regulatorios específicos.

Al mismo tiempo, la Ley de Defensa de la Competencia quita toda atribución en materia de competencia existente al momento de su entrada en vigencia a cualquier otro organismo del estado. En este sentido su artículo 59 indica “Queda derogada toda atribución de competencia relacionada con el objeto finalidad de esta ley otorgada a otros organismos o entes estatales”.

Todos los procesos de privatización incluso los que tuvieron la modalidad de concesión han tenido un marco regulatorio específico. Por otro lado, no existe la obligatoriedad de que una eventual privatización o concesión tenga que ser analizada a la luz de la Ley de Defensa de la Competencia aunque si tal operación encuadrara en los supuestos de tal Ley como operación de concentración económica debería ser notificada para su eventual aprobación.

5. ¿Hay pruebas de que las concesiones hayan aportado beneficios a los consumidores del país en términos de infraestructura, diversificación, calidad, precios o bienestar general del consumidor?

Efectivamente, hubo mejoras en los términos planteados especialmente en aquellas compañías que se encontraban en situación crítica en el período inmediatamente anterior a su privatización como, por ejemplo, las del sector eléctrico donde existían cortes programados del suministro, ferrocarriles y subterráneos con numerosos cortes de servicio y otros. También fueron reconocidas importantes inversiones en infraestructura energética y evidente algunas mejoras en la infraestructura de aeropuertos.

En cualquier caso, es difícil establecer un balance generalizado ya que las situaciones fueron bastante heterogéneas e incluso con el transcurso del tiempo servicios que en una primera instancia registraron mejoras luego sufrieron un proceso de deterioro importante. Este podría ser el caso del transporte de pasajeros por ferrocarril particularmente de aquellas concesiones que se cancelaron.

Asimismo, hay un balance entre inversiones, rentabilidad de la empresa privada y precio final al usuario o consumidor que debería ser tenido en cuenta a la hora de evaluar los beneficios para estos últimos.

Brazil

1. How many and what type of concessions have been granted in your country?

What is the typical/average duration of a concession?

It is very difficult to determine the number of concessions in Brazil. It would be around several thousand concessions, since there are concessions at the Federal, State (26 States and 1 Federal District) and local (around 5.500 municipalities) levels.

There are concessions in sectors such as air and road transportation, ports, roads, railways, energy (generation, transmission, distribution), oil, gas, telecommunications, water and sewage provision.

The average duration of a concession is 25 years. Duration varies according to the sector and in some cases, it can be extended or renewed.

2. What were the modalities for creating a concession (Public offering/tender, decree, etc.)? Is there a law in your country for the granting/termination of concessions? Are there provisions in concession agreements which allow the government to terminate the concession?

A private partner could only be contracted through a public bid, as determined by the Constitution. This is the rule for all concessions by the Federal, State and local entities in all infrastructure sectors. Exemptions are only accepted in emergency cases, when services are interrupted and for a short and limited period of time. The judgment criteria adopted can be (i) the lowest rate for the service to be rendered; (ii) the greatest offer, in cases where payment will be made to the granting entity by the grantee of the concession; and (iii) by the combination of these two criteria when stipulated by the bidding announcement.

The regulation of the concession and permission regimes for the provision of public services, as set forth in Article 175 of the Federal Constitution, is mostly provided by Law # 8.987 of 02.13.95, also known as the “Concessions Law”, and Law # 9.074 of 07.07.95. This regulation enables the State to delegate the provision of public services to third parties. In this kind of contract, the concessionaire invests at its own account and risk, in the name of the State, while receiving remuneration by the collection of rates. Since the Concessions Law is generic, establishing the directives for the delegation of public services at the federal, state and municipal levels, there is a need for specific regulations for each sector and sometimes for each contract.

The Public-Private Partnership Law (or PPP Law) of December 2004 (Law #

11.079 of 12.30.2004) created new modalities of concessions which allow government disbursements to the concessionaire and eliminated the need of legislative authorization for government financial commitments to private partners. The main characteristic of this Law was to divide the risks of the activity to be delegated between the government and the private third party. To guarantee the fiscal sustainability of PPPs and to control the governmental commitments to projects (limits on the amount of subsidies, contingent liabilities and overall debt), the PPP Law established some requirements and limits. It also granted specific agencies the power to enforce the standards and rules on this matter, specially on its budgetary aspects.





Although the above mentioned laws are applicable for any infrastructure sector, each sector has also a legal framework that establishes its regulatory agency and some particularities of the concession awarding process. Some of these laws are: Law # 9.472/97 - telecommunications; Law 10.233/01 - roads, railways, surface and water transportation; Law 9.427/96 and Law 10.848/04 - electricity.

–  –  –

3. Were competition concerns taken into account at the time of granting a concession? What are the competition concerns or issues that have arose from concessions in your country? Was special protection in regard to dominance, entry or price control granted to concessionaires at the time of granting a concession?

The Federal Constitution and the Law of Concessions require concessions to be awarded under competitive bidding procedures. Therefore, competition for the market is a constitutional and legal requirement when it comes to awarding concessions in Brazil. Furthermore, the Law of Concessions establishes that, except in the case of economic impossibility, concessions should be awarded under arrangements that allow competition in the market. The Concessions Law established a legal framework regulating the conditions for entrance, exit and operation of private initiative in infrastructure sectors. It is also mandatory that all concessions have specific rules concerning price control. However, due to the large number of concessions awarded in Brasil, it is difficult to verify whether competition concerns about dominance and other aspects were fully taken into consideration while they were being granted.

4. Which sectors from your economy are exempted from competition law? Which sectors or what type of concessions are under a specific regulatory oversight?

Are concessions subject to the national competition law?

There are no sectoral exemptions in the Brazilian Competition Law. Antitrust law is enforced in regulated sectors, which may also have a legal framework of its own that establishes the sector regulatory agency and some peculiar aspects of it, which may or may not include competition aspects of that peculiar market. The most important regulated sectors, such as electricity, oil, natural gas, telecommunications, railways, air and road transportation, are all under the supervision of specific independent federal regulatory agencies.

Although all concessions are subject to the national competition law, the Council for Economic Defense (Conselho Administrativo de Defesa Econômica – CADE) has recognized in some cases that the supervision of prices by a regulatory agency does not allow regulated companies to exert dominance, specially in those cases where a natural monopoly is in place and the regulation explicitly takes into consideration the market power problem.

5. Is there evidence in your country that concessions have brought about benefits for consumers in terms of greater infrastructure, diversification, higher quality, better prices; overall consumer welfare?

As a general rule, the costs of public services rendered by the Government are much higher than the costs of the same services provided by a private supplier due to various sorts of inefficiencies such as poor procurement mechanisms, low management capacity and possible difficulties to comply with agreed payment schedules. This creates room for efficiency gains by private partners. It would be worthy comparing, on a case-by-case basis, the efficiency gains to be obtained by private participation against some shortcomings and difficulties involved in privatization. However, due to a lack of adequate historical information on the costs faced by the public sector, and on the costs of privatized services (not all regulatory agencies release adequate information on privatized services) we still face difficulties in comparing the costs of public and private provision of services. It would be desirable to eventually develop a sort of Public Sector Benchmark suited to the Brazilian case that would allow ex ante evaluation of contracting out projects.

Bulgaria

1. How many and what type of concessions have been granted in your country?

What is the typical/average duration of a concession?

The Bulgarian Concessions Act states that according to its object, a concession may be one of the following types: i) public works concession, ii) service concession, iii) mining concession.

Concessions may be divided also on the basis of the grantor of the concession: i) municipal concession – the grantor is a municipality, ii) state concession – the grantor is the Council of Ministers, iii) public concession – the grantor is a public law organization, represented by a body in accordance with its act of establishment – in regard to facilities in its ownership.

A point should be made that the Bulgarian Commission on Protection of Competition (the CPC) is the Concessions Review Body. The CPC’s decisions following complaints concerning public procurement procedures are subject to judicial control by the Supreme Administrative Court.

2. What were the modalities for creating a concession (Public offering/tender, decree, etc.)? Is there a law in your country for the granting/termination of concessions? Are there provisions in concession agreements which allow the government to terminate the concession?

Under the Concessions Act, the procedure of granting a concession includes: i) taking preparatory action, ii) conduct of the concession procedure, iii) execution of a concession agreement.

The procedure for granting concessions includes: i) adoption of a decision to launch a concession procedure, ii) conduct of an open procedure for granting a concession iii) selection of a concessionaire.

Prior to the procedure for granting a concession preparatory activities are carried out.

Those are the obligation of the ministers – in state concessions, or of the municipal mayors – in municipal concessions.

A new positive legislative step is the right of each interested individual to propose a grantor to consider the possibility of granting a concession and opening a procedure to grant a concession.

During the preparatory activities, certain analyses are carried out (financial, legal, ecological), as well as coordination activities to objectively evaluate the public interest with regards to environment and security. Only after the completion of these preparatory activities do grantors initiate an opening of a concession procedure.

The Bulgarian Concessions Act, in force since 1 June 2006, last amended at the end of

2008. The Concessions Act regulates the conditions and procedure for granting, implementation and termination of concessions. It defines the concession as the right to operate a facility of public interest, made available by a grantor to a merchant (the concessionaire), in exchange for the latter's obligation to build and/or manage and maintain the facility subject to the concession at his/her own risk.

This Act also defines the types of concessions as i) public works concession, ii) services concession and iii) mining concession.

According to the Concessions Act (Art. 65 (1)), a concession is granted by means of a concession agreement. The possibility to terminate a concession agreement is provided for in the Concessions Act (Art. 73).

Before the expiry of the period of the concession, terminating the agreement is possible in two cases – the termination could be compulsory (Art. 74 (1) of the Concessions Act) or optional (Art. 75 and 76 of the Concession Act). The latter option could be exercised unilaterally or by mutual agreement between the parties.

The provisions of the Concessions Act (Art. 74 (1)) state that before the expiry of the concession period the concession agreement is terminated without any party being

required to serve a notice:

- in case of loss of the object of the concession – from the date of loss;

- in the event of death of the natural person or winding down of the concessionaire – legal person with a legal successor – as of the date of death, respectively of the winding down, unless an agreement has been executed to extend the concession agreement with the legal successor under the terms and the procedure of the Concessions Act (Article 72);

- in the event of death of the natural person or winding down of the concessionaire – legal person without a legal successor – as of the date of death, respectively of the winding down;

- in case of an effective decision for declaring the concessionaire bankrupt – as of the date of entry into force of the decision;



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