In its 2011 Proposal for a new directive on public procurement, the Commission included the consolidation of the general principles of procurement, where it referred to an objective concept of restriction of competition. Successive negotiations allowed the Council and the Parliament to alter the drafting of this provision to include both a subjective element and a presumption of distortion of competition in the final text of Article 18(1) of the 2014 Directive. This could diminish the effectiveness of the principle and is difficult to reconcile with the existing case law of the CJEU. This chapter traces the legislative evolution of the principle of competition in public procurement and looks for explanations for the alteration of its initial drafting. Looking to the future, it considers whether the CJEU will stand by the new drafting and limit the principle as desired by the Council and the Parliament or, conversely, it will promote a functional approach along the lines of the objective conception initially proposed by the Commission.
Several Member States have tried to limit gold-plating (overimplementation), and the value of preparatory works as a legal source varies considerably throughout the EU in the field of public procurement law. It is noteworthy that the recitals of the preamble appear not to be implemented, or only implemented by use of preparatory works. The Member States have in general adopted narrow interpretations and taken a minimalistic approach and have in most cases chosen not to exploit the opportunities offered by the Directive. Indeed, the Member States prefer to stick to the wording of the Directive and several use the copy-out technique. The questionable interpretations adopted by the national legislators are striking in their lack of common trends and relatively limited number. Furthermore, inspiration from the legislation or practice of other Member States is difficult to establish.
Albert Sanchez Graells and Francisco Marcos
Okeoghene Odudu and Albert Sanchez-Graells
This chapter assesses the framework enabling private parties to enforce competition law and the implications this has both in relation to the evolution of national tort law in European Union (EU) member states and for an incipient acquis of EU tort law. It considers how the law has evolved since the Court of Justice of the European Union (CJEU), in Courage v Crehan, confirmed that those able to show that they have suffered loss as a result of a competition law violation are able to recover compensatory damages and the progress made since the adoption of Directive 2014/104/EU on antitrust damages. The chapter focuses on four selected topics: the erosion of the requirement of fault; the erosion of individual responsibility; the extension of recoverable losses; and modifications to the burden of proof arising from a presumption of damage resulting from certain types of anti-competitive behaviour. It concludes by questioning whether traditional tort law doctrines at member-state level can survive under the pressure of these EU law developments. The chapter indicates areas of uncertainty that may serve to guide future research efforts.
Grith Skovgaard Ølykke and Albert Sanchez-Graells
This introductory chapter provides an essential background to the research project and the ‘law and political science’ methodology employed in each of the substantive chapters. It details the structure of the book and lays out the main research questions that the individual contributions and the general conclusions aim to answer.
Albert Sanchez-Graells and Grith Skovgaard Ølykke
This final chapter provides a general conclusion to the research project. It picks up on the main themes laid out in the assessment of the EU legislative procedure from a political science perspective and builds upon the insights gained with the analyses of distinct legal issues in each of the substantive chapters, which are used as case studies. Ultimately, the chapter answers the questions: how did the Commission, Council and Parliament generally interact in the legislative process; whether one or more EU institutions had the upper hand in the negotiations, particularly considering the proposed and amended texts; and, most importantly, what is the predicted interpretation by the CJEU of the examined provisions in the 2014 Public Procurement Package and to what extent is that likely to alter or neutralise the result of the legislative process. Additionally, maybe from a more holistic perspective, the final outcome of the 2011–14 legislative process is assessed, so as to conclude and determine whether it has resulted in a reformation or a deformation of the EU public procurement rules now encapsulated in the 2014 Public Procurement Package.