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 15: Public goods, special rights and competitive markets: Right2Water and the utilities procurement regime

Eleanor Aspey


The original Commission proposals for reform to utilities procurement were, at first sight, relatively unremarkable, with the only major change being the regulation of utilities concessions following the introduction of the Concessions Directive. However, this change led to the Commission facing an unexpected challenge from a novel location, when the public set up a European Citizens’ Initiative, Right2Water, alleging that extending the concessions regime to the water sector was an unjustifiable extension of competitive principles and an attempt to privatise the water industry by the back door. Following public pressure, the Commission eventually removed the water sector from the scope of the regime in Article 12 of the Concessions Directive. This chapter evaluates this decision, considering the validity of Right2Water’s allegations about the impact of including the water sector in the Concessions Directive and the potential impact of the subsequent removal on the utilities procurement regime more widely. It will show that ultimately, the removal of the water sector was a misguided decision, both damaging the clarity and consistency of the procurement regime as a whole and, counter to Right2Water’s aims, potentially also lowering the level of protection from privatisation within the water sector.

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