EU Public Procurement Directives Research Articles

Are national football federation bodies governed by public law? Setting the boundaries of EU Public Procurement directives

Sports federations, being private associations, have traditionally awarded their contracts regardless of EU Public Procurement directives. The Court of Justice of the European Union has recently given its first ruling on this issue: Federazione Italiana Giuoco Calcio, judgment of 3 February 2021. This article intends to summarize and comment on this decision, a preliminary reference requested by the Italian Council of State. The Court of Justice of the European Union has stated that, if the sports federations depend on any state authority, namely the Italian National Olympic Committee, they should comply with the Public Procurement directives. This might increase transparency, although it could add structure and length to contract award procedures, above certain economic value. The judgment affirms that Italian sports federations have been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, but is less clear regarding whether they are subject to management supervision from the Italian National Olympic Committee. The Court of Justice of the European Union defers the final decision on dependency to the Italian court, thus giving little guidance to other Member States.

Judicial Protection and Competitive Award Procedures in Germany

The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in 'competitive award procedures' underlying Directive 89/665/EEC to other administrative procedures. Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on minimal standards (directly derived from the German constitution) for judicial review in competitive award procedures concerning the recruitment of public officials. On this basis, one may discern trends in German case law, administrative practice, and scholarship towards developing judicial review systems in competitive award procedures for public procurement beyond the thresholds set by the EU directives. This is relevant for privatizations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to competitive award procedures. This article will analyse these different trends and suggest explanations for them.

What Shapes National Responses to EU Public Procurement Policy? The Case of Health and Social Services in Norway, Germany and England

This article investigates responses to EU public procurement directives in Norway, England and Germany, with a particular focus on health and social services. We used a comparative national patterns approach to analyse parliamentary debates, consultative statements, the media and interviews with stakeholders.
 The literature contains prominent arguments suggesting that health and social service governance regimes are converging on the liberal model. Some authors argue that with its focus on policies which create markets, the EU is a driving force with an increasing relevance for market-based governance practices. However, the role of EU legislation is unclear as procurement regimes in relation to the governance of health and social services constitute a highly ambiguous terrain. Our study enabled us to show that the form of the debate is highly dependent on path-dependent mechanisms and the degree of openness of the national political system that provides channels for interests to be articulated. Indeed, the Norwegian case study serves as an excellent example of why marketisation has not advanced to the degree predicted in the literature: an inclusive and open political system and a strong non-profit health and service sector meant that the non-profit groups managed to turn the debate in their favour.

Sustainability Through Public Procurement: The Way Forward – Reform Proposals

Public procurement amounts to about 16 per cent of the EU Member States’ GDP. A major contribution to the achievement of the Sustainable Development Goals is possible by enhancing sustainable procurement practices. The 2014 EU Public Procurement Directives (Directives 2014/23/EU, 2014/24/EU and 2014/25/EU) have largely clarified the scope for permissible sustainable procurement decisions, but the adoption of Sustainable Public Procurement (SPP) is still limited. The rules could be more permissive and thoroughly take into account all the different aspects of sustainability. Even more urgent and essential is to push for behavioural and organisational changes in the ways contracting authorities perform their buying functions to maximise positive, sustainable impacts. It is critical to change procurement management practices so that the sustainability demanded in contracts is properly verified along the entire supply chain and remedial actions are taken where non-compliance is detected.

The Public Procurement and Innovativeness of Economy. The Perspective of Buying Agencies in Poland

<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;">Polska wystartowała z zamówieniami publicznymi wprowadzając w 1995 r. Ustawę o zamówieniach<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> publicznych. Od tego czasu w tym ustawodawstwie pojawiło się wiele zmian mających na celu poprawienie funkcjonowania systemu zamówień publicznych oraz doprowadzenie do zgodności tego systemu<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> z dyrektywami Unii Europejskiej.<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> W 2004 r. Polska, stając się członkiem UE, opublikowała ustawę Prawo zamówień publicznych, która<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> po szeregu nowelizacji obowiązuje do chwili obecnej. W nowych dyrektywach unijnych, uwzględnionych<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> również w polskim Prawie zamówień publicznych, akcent położono na uwarunkowania sprzyjające innowacyjności poprzez zamówienia publiczne.<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> Celem niniejszego artykułu jest próba oceny tych uwarunkowań prawnych w odniesieniu do innowacyjnych zamówień publicznych. Ponadto opisano rezultaty badania empirycznego, polegającego na<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> przeprowadzeniu wywiadów ankietowych wśród podmiotów zamawiających w Polsce na temat oceny<span style="font-family: TimesNewRomanPSMT; font-size: 9pt; color: #231f20; font-style: normal; font-variant: normal;"> potencjalnego wpływu zamówień publicznych na poprawę innowacyjności ofert.</span></span></span></span></span></span></span></span></span>

Inside the Municipal Lobby: Explaining Local Government Influence on the New EU Public Procurement Directives

Despite a challenging context, local authorities succeeded in influencing one of the most fiercely debated issues of the new EU Public Procurement Directives (2014): the (conditional) exemption of public-public cooperation (PPC). Using theory-building process-tracing this paper analyses the PPC-case to design a parsimonious causal model of successful municipal lobbying under challenging circumstances. The model represents a composed mechanism that triggered municipal lobby influence through the interplay of three basic parts: a strategic lobby campaign deployed by a strong protagonist, an external opportunity structure underpinning and strengthening the latter and a significantly receptive EU decision-making arena. Furthermore, the case suggests that in challenging lobby cases local government can profit from its distinctive character as an electorally legitimised and politically connected interest group to promote its interests in the EU polity.

Human Rights in Public Procurement

The increased focus on sustainability in public procurement is reflected in the revised EU public procurement directives from 2014. However, even though the EU lawmakers have underlined the importance of enabling smart, inclusive and sustainable growth, and aspired to provide a tool box for contract authorities who would like to do so, the lack of clear guidance may lead to the scope of action not being used. It may even impede contracting authorities from taking human rights issues and sustainable development into account when procuring goods, services and works. This article analyses some of the developments and innovations in the public procurement Directive 2014/24/EU, hereunder technical specifications, life-cycle costing and exclusion, with the aim of commenting on obstacles and opportunities with regards to promoting human rights through the public procurement process. Keywords: Public procurement; Human rights; Life-cycle cost; Technical specifications; Fair trade

Transposition of the EU Public Procurement Directives 2014 in Austria

The EU public procurement directives 2014 further advance the European Commission’s ambitions to regulate most public procurement at the EU-wide level. The Directives already set out a fairly concrete legal framework for national parliaments regarding public procurement procedures for work, supply and service contracts above the EU-thresholds. The Austrian parliament decided to implement these directives mostly word for word, but at the same time tried to preserve most of the historical developments to the public procurement law that were specific to Austria. In addition to that, the Austrian legislature responded to recent ECJ case law that was established after the EU Directives were published. The new public procurement code creates legal certainty for both contracting authorities and contractors in several different aspects. However, the interpretation of some provisions will be subject to case law, especially regarding contractual cooperation between contracting authorities. Concerning contracts not fully regulated by the Directives – such as concessions as well as social and other specific services – the Austrian legislature opted not to regulate them further and leave some flexibility to the contracting authorities.

Is Joint Cross-Border Public Procurement Legally Feasible or Simply Commercially Tolerated? A Critical Assessment of the BBG-SKI JCBPP Feasibility Study

This paper provides a critical assessment of the Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States prepared by BBG-SKI for the European Commission. The paper submits that the study provides some interesting data and details about relevant case studies, but that it does not shed significant light on the doubts created by the rules on joint cross-border public procurement (JCBPP) in the 2014 EU Public Procurement Package, and that the main weakness of the study is its lack of a general legal analytical framework. In order to gain additional legal insights on the basis of the empirical data included in the BBG-SKI study, this paper proposes an analytical framework under which to assess the legal compliance of JCBPP structures. It then summarises each of the case studies included in the BBG-SKI study and offers a critical (re)assessment of the issues that would have required more information and/or which are insufficiently analysed in the BBG-SKI study. Based on this reorganised empirical evidence, the paper proceeds to a critical assessment of some of the outstanding legal barriers and challenges to JCBPP. It concludes by stressing some of the remaining uncertainties concerning legal development at Member State level, and calls on the European Commission to facilitate more detailed research leading to the adoption of future guidance on JCBPP under the 2014 EU Public Procurement Directives.

Success Factors for Early Contractor Involvement (ECI) in Public Infrastructure Projects

It is widely accepted that contractor involvement in the front end can influence the outcome of the project in a positive way. However, in the traditional project delivery method of construction projects, the design and construction process are separated and sequentially. As a consequence of this, it is difficult to integrate construction knowledge in the front-end of projects. The evolving project methods are designed to remove such typical challenges by involving contractors early in the process. The purpose of this paper is to explore the success factors for early contractor involvement (ECI) in public infrastructure projects. In addition, the paper aims to propose suitable approaches to implement ECI for public owners in future projects without violating the EU public procurement directives. In addition to a literature study, multiple case studies on eleven projects selected from the Norwegian public bridge projects were carried out. The majorly identified ECI success factors are timing of ECI application, proper compensation, trust, contractors’ qualification, owners’ competence, and risk distribution. The paper concludes that public owners can implement ECI by using various approaches without violating the EU public procurement directive. Furthermore, based on the identified success factors, effective practical strategies for the successful implementation of ECI may be generated.

Integrating Social and Environmental Dimensions in Public Procurement: One Small Step for the Internal Market, One Giant Leap for the EU?

This working paper provides a legal analysis of the inclusion of social and environmental clauses in the modernisation of the EU's public procurement directives. It focuses in particular on Directive 2014/24/EU and evaluates the measures and provisions dealing with the obligation to comply with social, environmental and labour laws. It concludes that the co-legislators have managed to give contracting authorities and member states a lever to introduce more ethics in economic relations.

Sending Contractors on a Holiday: Proposed Rules for an Integrated and Seamless Approach in the Ministry of Defence to Debarment and Suspension of Errant Entities

This short working draft suggests new rules for debarment and suspension of erring entities in the Ministry of Defence in India, in light of inadequate outcomes arising out of integrity pacts. Section II of the paper contains proposed rules based on Indian case law and practices, as well as other international best practices such as the US FAR, the new EU Public Procurement Directives, the World Bank Sanctions System and the UNCITRAL Model Law on Public Procurement. The current draft/working paper version is Version 3.0; and includes stakeholder suggestions received by the Author while drafting similar rules for debarment and suspension of erring entities (including rules for non-renewal of registration, cancellation of registration and demotion of registered contractors/firms) for the State Government of Chhattisgarh in India.

The Reform of the EU's Public Procurement Directives: A Missed Opportunity?

This Working Paper provides a critical analysis of the EU Commission’s proposals to modernise and simplify its rules on public procurement. The author of the paper, Eric Van den Abeele, looks at the political background and reasons behind the EU’s revision of its public procurement directives. The reform aims at making the rules simpler and more flexible, providing better access to the public procurement market by SME’s and fostering a better qualitative use of public procurement through the introduction of social and environmental criteria. On all these accounts, the Commission’s proposal is mediocre and disappointing, argues the author of this working paper providing extensive arguments for his critique. His analysis shows that the proposed reforms do neither enhance the EU’s competitiveness nor promote sustainable development.

Better Late Than Never: On the Implementation of the EU Public Procurement Directives 2004/17 and 2004/18 in Many Member States of the European Union

This contribution addresses the implementation of the Public Sector Procurement Directive 2004/18/EC and the Utilities Sector Procurement Directive 2004/17/EC in the 27 Member States. The term formal implementation is used since the discussion is limited to the questions whether and when the Member States formally attempted to respond to the requirements of the new Directives by introducing new national public procurement laws and regulations or by amending their existing legal frameworks. An analysis on whether the substantive contents of the new Directives were properly and fully implemented in the 27 national jurisdictions is not provided. In other words, this contribution does not discuss the substantive compatibility of the new public procurement laws of the Member States with the requirements of the new Directives.