Transposition of the 2014 directives in Estonia was significantly delayed for a multitude of reasons, many only indirectly related to the actual duty to transpose. The Estonian Public Procurement Act traditionally incorporates all kinds of regulation: above and below the EU threshold, classical and utilities sectors, defence and security procurement, as well as remedies. A review of the entire national public procurement law was therefore undertaken, rightfully keeping the integrity of the regime, albeit hindering transposition through conflicting issues such as the level of national thresholds, the matter of retaining some simplified national procurement procedures and the desperate (failed) attempt to improve the regulation of contract awards financed by the European structural funds. Among the issues prescribed by the directives, regulations aimed at protecting subcontractors have been twisted into an intriguing domestic version, with questionable effect. The new law has been effective since September 2017.
Steen Treumer and Mario Comba
The Directive was implemented before the deadline for implementation. The Danish implementation is one of the most interesting in the EU, as the legislator has consistently pushed the boundaries of EU public procurement law. The legislator reformulated the provisions of the Directive, adopted several questionable interpretations, considered numerous issues in further detail than the Directive and engaged in overimplementation. The majority of the questionable interpretations can be found in the preparatory works to the Procurement Act. Preparatory works are an important legal source in the Danish legal system, as it is an exception that Danish courts and complaints boards disregard preparatory works. Nevertheless, this has happened in the procurement context and will likely happen again due to the abovementioned characteristics of the Danish implementation. The regulation of competitive procedure with negotiation, contract changes and a requirement for prior publication of the method of evaluation is also of European interest.
Steen Treumer and Mario Comber
This chapter analyses the implementing legislation and the variations in the national legal systems, in section 2. The section includes analysis of preparatory works as a legal source that has proven to be of particular importance due to the substantial variations in the legal systems of the Member States. Goldplating and questionable legislation are considered in section 3 and selected issues of implementation (exclusion, competitive procedure with negotiation, contract changes) in section 4. The latter section also covers the Member States’ approach to the implementation of the recitals to the Directive. Section 5 relates to a range of provisions of the Directive that allow the Member States to implement various options and aims. Final conclusions are found in section 6