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.
This chapter provides some comparative reflections on the need for public procurement systems to reach an adequate balance between their transparency requirements and the risks of collusion among tenderers, or bid rigging. The chapter concentrates, in particular, on the domestic transposition of the EU rules in nine selected jurisdictions. It places the domestic systems in a spectrum that goes from ‘transparency-first’ to ‘competition-first’ systems. The chapter also offers some comparative reflections concerning the substantive balance achieved in different jurisdictions, as well as on the diverging institutional arrangements adopted in these nine EU member states.
This chapter offers an overview of the rules applicable to transparency and disclosure of documents in the context of public procurement of the EU Institutions under the rules of the Financial Regulation and its Rules on Implementation, as well as the EU FOIA Regulation (Reg 1049/2001). It takes into account the novelties that the Omnibus Regulation will introduce from 1 January 2019. The chapter pays particular attention to the protection of commercial interests and business secrets in the context of procurement debriefing in front of the EU courts.
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.
The 2014 EU rules on public procurement arguably create regulatory space for the implementation of ‘core’ human rights oriented public procurement policies. This chapter discusses the main constraints for the inclusion of ‘core’ human rights-related considerations in the procurement process through the following instruments: exclusion grounds; use of labels; award criteria and award constraints; rejection of abnormally low tenders; and contract performance requirements. The chapter offers a sceptical view of the effectiveness of any of these mechanisms due to policy fuzziness and significant resource constraints. It further queries the desirability of ‘core’ human rights oriented procurement due to the implicit trade-offs it creates against the general effectiveness of the procurement function.
This chapter revisits the interaction between the EU rules on State aid and on public procurement. It probes the standard presumption that compliance with EU procurement rules excludes the existence of State aid because public tenders are apt to replicate market conditions and thus suppress any undue economic advantage. The chapter assesses the increasing number of points of interaction between both sets of rules that emerge from the novelties in the 2014 EU Public Procurement Package and the constant evolution of case law; and highlights some shortcomings of the standard presumption in relation to: the notion of State aid; R & D and pre-commercial procurement; ‘public house’ situations; negotiated procurement; abnormally low tenders; the procurement of services of general economic interest (SGEI); procurement itself as an SGEI; and procurement from ‘special organisations’. The chapter concludes that the boundaries of what constitutes State aid in the context of public procurement are fuzzier than ever. In doing so, the chapter offers a roadmap for further research in this area of EU economic law, as well as identifying areas that could benefit from additional guidance from the European Commission, in particular on benchmarking.
Albert Sanchez Graells and Francisco Marcos
There seems to be a clear trend of increased protection of ‘corporate human rights’ and, more specifically, due process rights (or procedural fairness) in the field of enforcement of competition law. To a large extent, that trend is based on the uncritical extension of human rights protection to corporate defendants by a process of simple assimilation of corporate and individual defendants. This chapter briefly explores the rationale behind the creation of due process rights when the individual is the beneficiary of such protection. It then goes on to critically assess if the same need exists for the extension of those protections to corporate defendants, particularly in the field of competition law or antitrust enforcement. It concludes with some warnings concerning the diminishing effectiveness of competition law prohibitions and of human law protection that can result from an overstretched conception of due process protection in this area of EU economic law. From a substantive perspective, the chapter submits that the extension of human rights to corporations cannot be uncritical and should not be completely symmetrical to that for human beings; but that it rather needs to be necessarily adapted to their circumstances. To put it more bluntly, it is suggested that in the field of the enforcement of economic law, administrative law procedures should be sound and there should clearly be a strong system of judicial review in place, but corporations should not have access to broader constitutional or human rights protections and any perceived shortcomings in the design and application of those procedures should remain within the sphere of regulatory reform. KEYWORDS Due process, procedural fairness, good administration, corporate human rights, human rights, competition law, antitrust law, enforcement, effectiveness. JEL CODES K21, K23, K42.
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.
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.