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논문 기본 정보

자료유형
학술저널
저자정보
Jörn Axel Kämmerer (Bucerius Law School)
저널정보
서울대학교 공익산업법센터 경제규제와 법 경제규제와 법 제10권 제2호(통권 제20호)
발행연도
2017.11
수록면
236 - 250 (15page)

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초록· 키워드

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Since mid-2017, Germany has been holding the dubious record of being probably the first country to make Public-Private Partnership (PPP) a constitutional notion. At the same time, the long-standing controversy on the meaning and scope of PPP as well as on its usefulness, especially in highway construction and maintenance, has not come to an end. As will be shown in this article, the amendment of Article 90 of the Basic Law, dealing with federal highways, their construction and administration, opens a door to PPP but by no means very wide, considering the territorial and functional limits imposed by the provision. Moreover, the constitutional amendment was overshadowed by the impending failure of what until then had been considered a showcase PPP project: the Bremen-Hamburg strand of the A 1 Motorway, whose private concessionaire declared that due to shortcomings of the underlying contract model, it was close to facing bankruptcy. At the same time, the Federal Court of Auditors has repeatedly opposed PPP as uneconomic, an assertion that is refuted by its proponents. While at first glance, Article 90 (2) of the Basic Law seems to accommodate the objections, it also involves a constitutional recognition of the concept and underpins its inherent lawfulness. The forthcoming entrustment of a private infrastructure company in public ownership of the planning, construction and administration of all federal motorways will probably alter the nature of PPP where it is applied, insofar as the private entrepreneur will henceforth cooperate not with a public law entity but a body that is, like himself, governed by private law. If the European Court of Justice will allow Germany to extend, as envisaged, its tolling legislation, now confined to heavy vehicles, to all automobiles, the influx of toll revenues, which may be used to compensate the private partner, could provide PPP new momentum. What remains objectionable in the constitutional amendment is that the use of PPP as a term does not seem to reflect a specific understanding of that highly disputed concept, nor does it lay the ground for it; it thus raises expectations that can only be belied.

목차

〈ABSTRACT〉
Ⅰ. Introduction
Ⅱ. Normative Approaches to Public-Private Partnership (PPP) in Germany - and their Limits
Ⅲ. PPP in Highway Construction and Management
Ⅳ. The New Federal Highway Administration Model - A Second Chance for PPP?
Ⅴ. Conclusion
〈Bibliography〉

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