Research Handbooks in European Law series
Edited by Christopher Bovis
Chapter 11: Judicial activism and public procurement
Judicial activism represents the most influential factor in the evolution of the public procurement acquis, which has been experiencing conceptual and regulatory vagueness, limited interoperability with legal systems of Member States and continuous market-driven modality changes in financing and delivering public services. The jurisprudence of the Court of Justice of the European Union (CJEU) has been instrumental in developing and honing the concepts of the public procurement acquis and in providing for clarity and certainty to its decentralised application and enforcement. The current reform agenda of public procurement is guided by doctrines developed by the Court which attempt to fuse the underlying principles of public procurement regulation with the fundamental principles enshrined in the EU Treaties by supplementing the deficiencies of the public procurement Directives with primary EU law. Public procurement is viewed by both EU Institutions and Member States as an instrument for growth and competitiveness in the light of the European 2020 Strategy. Public procurement law has been moulded by the instrumental role of the CJEU, which has provided intellectual support to the efforts of the European institutions to strengthen the fundamental principles which underpin public procurement regulation. The impact of the Court’s jurisprudence has been in developing the public procurement acquis by submitting the conceptual themes of public procurement Directives to the doctrines which the Court established and had recourse to in its attempt to develop public procurement law as the conduit for the delivery of public services in EU Member States.
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