Public-Private Co-Operation and Judicial Review - A Case Study Drawn from European Infrastructure Projects

Abstract

National administrative law traditions are changing under the influence of socio-economic factors and the Europeanisation of legal norms. To illustrate this evolution this paper discusses the roles of judges in three European major transport infrastructure projects in England, France and Belgium where long-term public-private co-operation was developed and strong public opposition voiced. Public-private co-operation to develop infrastructure projects is not new. EU financial requirements and EU procurement directives, though, constrain more than ever how these public-private co-operations can be contractually designed, while EU sectoral legislation may offer new opportunities for public-private co-operation. In parallel, citizens are entitled to be involved in large projects affecting the environment and no longer mainly seek protection for their individual property rights. These changes illustrate the changing role of private parties (economic actors and citizens) in major infrastructure projects. They also result in public bodies endorsing an increasingly supervisory and monitoring role while not having the suitable skills, resources or information in-house to do so. These adaptations under the pressure of socio-economic and political concerns call for administrative law to revisit the role that judges play in adjudicating issues arising from these complex public-private contracts, where public bodies and private parties are locked together for a long term and where changing the relationship is extremely expensive for the public purse.