EC Procurement Regime

Abstract

Public procurement regime of the European Union is regulated by two sets of directives. These secondary legislations are intended to be detailed and sufficient regulatory tools in the fields of public procurement in EC in order to [o]pen up public procurement. EC treaty rules on the other hand largely relevant within the pubic procurement. The major freedom of movements rules such as Article 28 EC free movement of goods, Article 43 EC freedom of establishment and Article 49 EC, freedom of services are the building stones of the single market within the European Union. So far as the secondary legislation is designed to open up public procurement in order to eliminate obstacles before the single market, they can be viewed as possible detailed interpretation of the relevant EC treaty rules in the field of EC public procurement. Thus it might be noted that the public procurement directives are designed to carry main principles of European single market into the field of public procurement. One important implication of EC public procurement directives is their ability to impose positive obligations to the contracting authorities in their awarding procedures . That is why while EC member states are bound with negative obligations deriving from the EC treaty; secondary legislations impose positive obligations to render the negative obligations meaningful in the field of public procurement. On the other hand whereas EC treaty rules are applicable to those contracts that fall within the EC public procurement regime, for those contracts or arrangements falling outside the directives, they constitute only a regulatory framework. ECJ’s recent case law established that the contracts excluded from the scope of public procurement directives due to their financial value or nature nevertheless have to comply with the rules of EC treaty. This illustrates a two-tier system of Community procurement law which is supported by four ultimate principles; transparency, equal treatment, mutual recognition and proportionality. This paper will consider four types of contract/arrangement; namely concessions, low value contracts, defence procurement and in-house arrangements. In this paper, the attitude of EC treaty and Public Sector Directive (Hereinafter Directive) toward these contracts or arrangements will be discussed. The paper will conclude with a discussion of the place of those contract/arrangements under the WTO’s Plurilateral Agreement on Government Procurement (Hereinafter GPA).