Edited by Christopher Bovis
Chapter 13: The role of the European Court of Justice in public procurement
The importance of the European Court of Justice, hereinafter the Court, for public procurement law cannot be exaggerated. Although the procurement directives lay down a general framework, public procurement law is in its essence judge-made. This is not only true for the large portions of law falling outside the scope of the directives, i.e. procurement below the thresholds, procurement of service concessions and procurement of Annex B services, but also for the application of the procurement directives as such. As of the present time, the Court has delivered some 240 judgments on public procurement, covering everything from the duty to publish a notice to the right of access to efficient remedies. As is the nature of public procurement, most of the judgments deal somehow with the question of the scope of the public procurement directives. Most questions put before the Court concern public authorities that for some reason have chosen not to use the procedures laid down in the public procurement directives. As the Court’s case-law has developed, the Court has, however, made clear that there is a certain standard of transparency and equal treatment to be observed also outside the scope of the directives, having as its legal basis the direct application of the Treaty articles on free movement, that is, Article 34 TFEU (free movement of goods), Article 45 TFEU (free movement of persons), Article 49 TFEU (freedom of establishment) and Article 56 TFEU (free movement of services).
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