Public Economic Law
SKW Schwarz advised the federal government, the federal states, the local authorities, their fully and partially owned companies and private-sector partners of the public sector on all issues of public economic law.
The public sector and private-sector companies have to deal with each other in public-sector procurement, for example waste disposal, rescue services and the establishment of joint subsidiaries with private-sector companies (PPP). Another area where the public and the private sector meet are plant permission provisions, for example permits under German emission law, or conflicts about environmental protection. And finally the competition between the public and the private sector is an important issue: Under what circumstances may the public sector act like any other economic actor? What are the limits for economic activities of the public sector? Local government rules are of particular importance in this respect.
In short, our specialists on public economic law deal with all interactions between private-sector companies and the public sector, which procures goods and services, grants permits or may act like a competitor. Our focus is on:
Public procurement
Public procurement regulations have changed very much during the last few years, not least due to judgements by the European Court of Justice. What applied true yesterday may be outdated today. Quick acting, up-to-date knowledge and legal certainty are the basis for giving useful advice in procurement.
We have years of experience in public-sector procurement and know what contract placing authorities and suppliers want and need. We take care that the procurement needs are clearly structured and prepared in line with legal requirements for public procurement.
Utilities and waste disposal
We have years of experience in the areas of utility and disposal regulations. We know the vantage points of both the public and the private sectors. As lawyers, we are familiar with the “rules” as set out not only in the applicable laws and regulations at the national and the EU level, but also in numerous judgements of German courts and the European Court of Justice.
Environmental protection
For years, we have successfully represented plant owners, housing associations, property owners and property managers versus the authorities and third parties and achieved economically viable solutions. While we cannot always avoid asking the courts to (preliminarily) protect our clients’ interests, we try to obtain quick solutions in negotiations in the best interests of our clients.
Examples
On behalf of a large local housing association which was faced with considerable price hikes for district heating we examined the reliability of the utilities company in order to prepare a economically viable solution. The analysis centred on issues of
> antitrust law (abuse of a dominant market position)
> General Terms and Conditions law (clarity of price-hike provisions)
> the economic justification of the price hike (development of costs at the supplier level).
On behalf of a large company which has to take into account EU procurement regulations SKW Schwarz
> prepared a procurement handbook
> conducted internal trainings for all relevant employees
> made the initial procurements under EU procurement law in the framework of a “complete” package and
> provided a compliance officer.
Contrary to the opinion of all German Higher Regional Courts (Oberlandesgerichte) SKW Schwarz pointed out early on that certain federal states would have to procure rescue services in line with EU procurement law in the future and that this would endanger certain privileges of independent non-profit organisations. SKW Schwarz’s legal view was in the end shared by the Federal Court of Justice (BGH). In order to counter negative developments counterstrategies were developed (“complex aid system”).
SKW Schwarz pointed out in 2001, contrary to the then dominant view, that public-sector and private-sector waste disposal companies will compete intensively for household waste which is not disposed of, but recycled. SKW Schwarz developed methods to define the areas of activity and defensive strategies.