Effects of the COVID-19 Outbreak on Public Service Concession Contracts
Şerife Yıldız AkgülThe coronavirus disease 2019 (COVID-19) outbreak has had detrimental effects on legal transactions and public health. The measures taken to prevent the spread of the outbreak have affected the legal regime of contracts for the conduct of public services and public services. Of these contracts, the public service concession contracts are of particular importance. Hence, by undertaking the risks arising from the execution of the service, the contractor who performs the public service is under the obligation to conduct the service in accordance with the principles dominating the public service. In addition to the liabilities of the contractor, the rights of the contractor are also mentioned in the concession agreement. In terms of our subject matter, the principle of the continuity of public services and the right to ask for the protection of the financial balance of the contract is particularly important. The execution of public service concession agreements becomes very difficult and affects the financial balance of the contract due the COVID-19 outbreak. The contractor, who has to perform public service in any case, may request the administration to meet the obligations that he or she has to bear within the framework of the pandemic following the principle of continuity of public services affecting the financial balance of the contract. This study will thus discuss the French administrative law, which is the source country of the Turkish administrative law regarding public service concession agreements, and developments in the European Union law. Then, the instruments that provide the right to demand the protection of the financial balance of the contract granted to the contractor will be presented under unpredictability, force majeure, and fait du prince in the public service concession contracts affected by the COVID-19 outbreak.
COVID-19 Salgınının Kamu Hizmeti İmtiyaz Sözleşmelerine Etkisi
Şerife Yıldız AkgülCOVID-19 salgını, toplum sağlığı yanında hukuki işlemler üzerinde de etkilerini göstermektedir. Salgının yayılmasını engellemek için alınan tedbirler, kamu hizmetleri ve kamu hizmetlerinin yürütülmesi için yapılan sözleşmelerin hukuki rejimini etkilemektedir. Bu sözleşmelerden kamu hizmeti imtiyaz sözleşmeleri özel bir önem arz etmektedir. Zira kamu hizmetini, hizmetin yürütülmesinden kaynaklanan riskleri de üstlenerek yürüten sözleşmeci, hizmeti kamu hizmetine egemen olan ilkelere uygun yürütmek yükümlülüğü altındadır. Sözleşmecinin imtiyaz sözleşmesi çerçevesinde tabi olduğu yükümlülükler yanında sahip olduğu haklar da vardır. Konumuz bakımından bu yükümlülüklerden kamu hizmetlerinin sürekliliği ilkesi ile haklardan sözleşmenin mali dengesinin korunmasını isteme hakkı özellikle önemlidir. Zira COVID-19 salgını, kamu hizmeti imtiyaz sözleşmelerinin yürütülmesini kimi zaman oldukça güçleştirmekte ve sözleşmenin mali dengesini etkilemektedir. Kamu hizmetlerinin sürekliliği ilkesi gereğince kamu hizmetini her halükarda yürütmek zorunda olan sözleşmeci, sözleşmenin mali dengesi üzerinde etki eden salgın çerçevesinde katlanmak zorunda olduğu yükümlülüklerin karşılanmasını idareden talep edebilir. Bu çalışmada öncelikle kamu hizmeti imtiyaz sözleşmelerine ilişkin Türk idare hukukunun kaynak ülkesi olan Fransız idare hukuku ile Avrupa Birliği hukukundaki gelişmeler ele alınacaktır. Daha sonra COVID-19 salgınından etkilenen kamu hizmeti imtiyaz sözleşmelerinde sözleşmeciye tanınan sözleşmenin mali dengesini korunmasını isteme hakkını sağlayan araçlar, öngörülmezlik hali, mücbir sebep ve fait du prince başlıkları altında ortaya konulacaktır.
This study examines the effects of the coronavirus disease 2019 (COVID-19) outbreak on public service concession agreements because it has threatened public health and affected concession agreements. Moreover, public service concession contracts are of particular importance among contracts for the execution of public services.
Notably, the legal regime of the civil service concession agreements, which are determined by the case law and rules, has recently been the subject of a special regulation in the French and European Union (EU) laws.
Concession contracts have been handled within the scope of the civil service transfer contracts (contracts de delegation de service public) for a specific interval. Then, it was specially arranged with the ordinance regarding the Concession Agreements No. 2016-65 dated January 29, 2016. This ordinance was repealed, and concession contracts were issued in the Code de la Commande Publique, which entered into force on January 1, 2019, as one of the two main types of administrative contracts, along with the public procurement contracts.
Concession agreements, which were initially neither defined nor regulated in the EU law, were subjected to limited regulations and decisions of the Court of Justice of the EU within the framework of determining the scope of directives related to public procurement. To prevent legal uncertainty caused by the failure to fully distinguish public procurement contracts from service concession contracts, the European Union Commission first revealed the difference between the concession contracts and the public procurement contracts.
Moreover, concession agreements, such as tender contracts, became the subject of a special regulation in the EU law with the Directive 2014/23.
In the Turkish law, the public service concession agreements that have been included in all constitutions because the 1924 Constitution has been regulated by a law dated 1910, and these agreements are included in other laws. However, the Law of 1910 is not detailed and does not address the present-day needs. Therefore, to eliminate the disorganization in the legislation, it will be appropriate to make public service concession agreements subjected to a comprehensive legal regulation in terms of the Turkish law, like the French law.
The main feature of the concession agreements that is common in the Turkish, French, and EU laws is that the economic risks arising from the execution of the service belong to the concessionaire. Therefore, the distinguishing nature of these contracts, that is, public service costs, profits, and losses, belongs to the contractor. The contractor who obtains the right to concession also has the right to demand a fee from those who benefit from the service. Therefore, the contractor is charged for the fees received from the service beneficiaries, not by the administration, as in public procurement contracts. Due to the frequent use of services, this feature has particularly affected some of the public service concession contracts such as transportation services, as a result of the quarantine measure taken in the background of the COVID-19 outbreak.
Notably, in the Turkish law, the legislation on public service concession agreements is not detailed, and special arrangements for the effects of the pandemic on the contracts have not been made. However, for public procurement contracts that have legal mechanisms at the legislative level in the fight against the pandemic, a circular was issued regarding the effects of the pandemic on the procurement contracts. Under these circumstances, the framework of the unpredictability theory, force majeure, and fait du prince that are accepted with the case law related to the effects of the pandemic on concession agreements are discussed in this study. While discussing this issue, the regulations regulating the effects of the pandemic in the French law and the source country of administrative law on the contracts are also included.
In addition, public services must be conducted following the principles dominating the public service although public services are conducted by private law persons in the concession agreements. Among these principles, public service must be conducted in any case following the principle of continuity of public services. Following the principles that govern the public service, the COVID-19 outbreak is one of the most contracting obligations to operate the service. In addition to the liabilities of the contractor, the rights of the contractor are also mentioned in the concession agreement. If the financial balance of the contract is broken due to the pandemic within the framework of the right to demand the protection of the financial balance of the contract from these rights, the aforementioned unpredictability theory, force majeure, and fait du prince can be applied when the necessary conditions are met.
The explanations mentioned in this study are not only valid for public service concession contracts but also for administrative contracts that are made between the administration and private legal persons to execute the public service and the risks arising from the execution of the service belong to the contractor, unless stated otherwise.
