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Patricia Valcárcel Fernández

This chapter provides an analysis on the Spanish legal regime of active and passive transparency concerning public procurement. The chapter focuses on two different perspectives. On the one hand, the transparency is viewed from the perspective of social demands in public management and access to information held by the public sector, which also relates to public procurement. In this regard, it is important to note that Spain was the last of the larger EU countries (with a population of more than one million) to approve a modern law on this matter. On the other hand, transparency is looked at from the specific perspective of current Spanish public procurement sectoral legislation, where transparency has acquired a main role: even the Explanatory Memorandum thereof establishes transparency as its primary objective. The prominence acquired by transparency regarding public procurement in the Spanish legal order takes the form of highly significant active and passive publicity obligations. Nonetheless, the legislator's efforts have, to a large extent, overlooked the importance of transparency in the contract performance stage, where there is still much room for improvement.

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Patricia Valcárcel Fernández

The Swedish Public Procurement Act came into force on 1 January 2017. When implementing the EU procurement directives, much focus was placed on the new opportunities for social considerations in public procurement, in particular the possibility of imposing different labour conditions. There was an extensive political debate in the Swedish parliament. The current Swedish government is a social democratic minority government and the opposition, which is conservative, opposed the proposed legislation. It considered that the drafting of the draft law violated Union legislation, and in particular the articles of the Posted Workers Directive. The Swedish government was therefore forced to back down and amend the proposal; this amendment was then accepted by the Parliament. The provisions on labour conditions were therefore introduced in the Swedish Public Procurement Act five months after the law came into force, on 1 June 2017. The provisions on labour conditions are now more consistent with Union legislation.

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Patricia Valcárcel Fernández

How to create, provide and manage infrastructures and services linked to the public sector has been deeply debated in Spain. The options have focused on two models: (a) direct management and (b) indirect management. The most traditional model of indirect management has consisted in the conclusion of works and services concession contracts that have also included the most important models known as PPP. In addition, in Spain the regulation of all these variants has traditionally been included in the legislation on public sector contracts. Notwithstanding, the approval of Directive 23/2014/EU has indeed entailed a significant innovation in the way works and service concession contracts are conceived, because in Spain the traditional concessional models did not require the transfer of the operating risk to the concessionaires. This chapter analyses how the adaptation of the Spanish system to the requirements imposed by the aforesaid European Directive on concessions has taken place.