Reformation or Deformation of the EU Public Procurement Rules
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Reformation or Deformation of the EU Public Procurement Rules

Edited by Grith S. Ølykke and Albert Sanchez-Graells

Using an innovative ‘law and political science’ methodology, this timely book carries out a critical assessment of the reform of the EU public procurement rules. It provides a rich account of the policy directions and the spaces for national regulatory decisions in the transposition of the 2014 Public Procurement Package, as well as areas of uncertainty and indications on how to interpret the rules in order to make them operational in practice.
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Chapter 3: A deformed principle of competition? – the subjective drafting of Article 18(1) of Directive 2014/24

Albert Sanchez-Graells

Abstract

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.

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