從歐盟公共契約法探討具一般經濟利益公共服務之委外

Outsourcing the Public Services of General Economic Interest under EU Public Contract Law

將具有一般經濟利益之公共服務委託私人經營時，可以勞務採購或勞務特許為之。二者在公共服務委外經營上雖扮演重要角色，但與勞務採購不同，勞務特許直至2014年歐盟才通過特許採購指令加以規範。然而，此一指令雖給予勞務特許較明確之定義及較有彈性的選商程序等，但仍存若干問題。勞務特許及勞務採購之區別亦存在疑義，包括如何確認應移轉之風險類型、應移轉風險之程度為何及涉及以公法限制或降低風險時能否符合營運風險之移轉等問題。上述問題在歐盟法院之個案中亦有討論，本文即藉由對相關案例之研究釐清二者之實質內涵與適用關係。

One of the primary means of outsourcing public services of gen-eral economic interest in the EU, service concessions have been ex-cluded from EU directives on public procurement since the first pub-lic procurement law was adopted in the 1970s. However, the legal framework on service concessions established under CJEU case-law changed following implementation of the 2014 Directive on Conces-sion, which aimed to bring legal certainty and transparency to proce-dures associated with choosing concessioners and the performance of concession contracts. This new Directive provides for looser proce-dures than the 2014 Public Procurement Directive when contracting authorities decide to entrust the delivery of public services to the pri-vate sector through concession contracts, but several important issues are left to be clarified, particularly the distinction between public ser-vices contracts and service concessions. This article attempts to pro-vide a wholistic picture of the legal frameworks for outsourcing pub-lic services in the EU, including via public service contracts and ser-vice concessions under the public procurement law and the case-law of CJEU. Following establishment of the frameworks, this article tries to clarify the ambiguous conceptions of public services contracts and service concession through discussion of the various types of risk, and how much risk should be transferred in the determination of contract types. Also, if operational risks are limited, or extremely low due to the supervision of public service under the domestic public law, how is the nature of the contract determined?