WOULD AMENDMENTS FROM 2018 IN THE ACT ON PUBLIC-PRIVATE PARTNERSHIP AFFECT THE INCREASE OF THE SCOPE OF PERFORMANCE OF PUBLIC TASKS IN PUBLIC-PRIVATE PARTNERSHIP FORMULA IN POLAND?

WOULD AMENDMENTS FROM 2018 IN THE ACT ON PUBLIC-PRIVATE PARTNERSHIP AFFECT THE INCREASE OF THE SCOPE OF PERFORMANCE OF PUBLIC TASKS IN PUBLIC-PRIVATE PARTNERSHIP FORMULA IN POLAND? Assistant professor Wioleta BARANOWSKA-ZAJĄC1 Abstract Public-private partnership is one of the forms of cooperation between public entities and non-public sector entities, undertaken on the basis of an agreement for the performance of public tasks. Such a cooperation is covered by a strictly defined legal framework, which guarantees on the one hand the achievement of public law objectives and makes a guarantee of the protection of public interest. On the other hand, however, such legal framework creates a barrier to the development of cooperation between public sector and private sector. The Polish Act of 28 July 2005 and another Act of 19 December 2008 concerning public-private partnership, proved to be ineffective for real and efficient implementation of public tasks in the analyzed formula. The provisions of the latter Act do not, however, lead to significant increase in the number of agreements concerning public-private partnership. Through the amendment of 5 July 2018 there were made in the Act of 2008 some significant changes, starting from definition of public-private partnership, introducing the obligation for public entity to assess the effectiveness of the implementation of undertaking under public-private partnership as compared to effectiveness of its otherwise, criteria for the selection of a partner, the possibility of concluding public-private partnership agreement with a subsidiary of private partner, control of partnership, up to the partnership in the form of company and the task of public administration body established as competent in partnership matters. The purpose of the study is to analyze the amendments in the Act of 2008 concerning public-private partnership and attempt to assess the impact of these amendments on the efficiency, effectiveness and speed of public administration tasks, as well as to examine if these amendments are able to lead to significant increase in the number of agreements on public-private partnership concluded by central administrative bodies, as well as local selh-government units. Keywords: public-private partnership, amendments in the act, efficiency, effectiveness, public tasks. JEL Classification: H83, K23 1. Introduction In the realities of modern public administration, including self-government administration, struggling with insufficient funds for the implementation of numerous public tasks, a possibility of the use public-private partnership formula as one of the forms of assignment the public tasks seem to be extremely important. Due to the fact that modern public administration is unable to efficiently and effectively perform all its tasks in the classical forms, also due to the increasing number of various tasks to be performed and the increasing costs of their implementation, it has been sought new legal solutions, which give rise to the transfer of some public tasks to private entities. One of aforementioned solution is public-private partnership, which is a form of cooperation between the public sector and the private sector in order to realize widely understood public tasks2, undertaken on the basis of an agreement for the performance of public tasks. Such a cooperation is covered by a strictly defined legal framework, which guarantees on the one hand the achievement of public law objectives and makes a guarantee of the protection of public interest. On the other hand, however, such legal framework create a barrier to the development of cooperation between public sector and private sector3. 1 Wioleta Baranowska-Zając - Department of the Law of Local Self-Government, Faculty of Law and Administration, University of Szczecin, Poland, . 2 K. Płonka-Bielanin, Partnerstwo publiczno-prywatne jako forma współpracy między sektorem publicznym a sektorem prywatnym w zakresie realizacji zadań publicznych [in:] B. Dolnicki (ed.), Sposoby realizacji zadań publicznych, Warsaw 2016, p. 580-581, see also A. Miruć, Partnerstwo publiczno-prywatne jako sposób realizacji zadań publicznych [in:] J. Zimmermann (ed.), Koncepcja systemu prawa administracyjnego, Warsaw 2007, p. 473, K. Bandarzewski, Prywatyzacja zadań publicznych [in:] J. Zimmermann (ed.), Koncepcja systemu prawa administracyjnego, Warsaw 2007, p. 341. 3 See W. Baranowska-Zając, Public-Private Partnership as Form of the Performance of Tasks of Local Government Units in the Light of Polish Law [in:] 4th International Multidisciplinary Scientific Conference on Social Sciences & Arts SGEM 2017. Modern Science. Conference Proceedings. Vol. II. Political Sciences. Law, Albena Co., Sofia 2017, p. 631 and p. 637. Perspectives of Law and Public Administration Volume 7, Issue 2, December 2018 243 Although in Poland, the initiatives of cooperation between public entities and private entities were already taken in the 1990s4, entrusting public tasks to be carried out to private partners was regulated for the first time by the Act of 28 July 2005 on public-private partnership5. The assumption of the Act was to create a clear legal basis for cooperation between public entities and private partners, and thus - by introducing its legal framework - to promote such cooperation. However, the Act contained a number of solutions that, instead of leading to the development of partnership, stopped that development. Such solutions included, in particular, the necessity for the public entity to carry out many very detailed analyzes before the choice of the private partner, equally extensive and complicated, regardless of the scope and the type of cooperation. It is significant that, on the basis of the provisions of the Act of 2005, no undertaking was implemented in the formula of public-private partnership 6. In connection with this, it was undertaken a work to amend the regulation of public-private partnership, which led to the adoption of a new act in this area – the Act of 19 December 2008 on public-private partnership7. The provisions of the latter Act do not however lead to significant increase in the number of agreements concerning public-private partnership. Despite significant changes compared to the solutions of the Act of 2005, the Act of 2008 proved to be ineffective for real and efficient implementation of public tasks in the analyzed formula. Through the amendment of 5 July 2018 there were made in the Act of 2008 some significant changes, starting from definition of public-private partnership, introducing the obligation for public entity to assess the effectiveness of the implementation of undertaking under public-private partnership as compared to effectiveness of its otherwise, criteria for the selection of a partner, the possibility of concluding public-private partnership agreement with a subsidiary of private partner, control of partnership, up to the partnership in the form of comp (...truncated)