Showing papers by "Albert Sánchez Graells published in 2014"

Modernising Social Services in the Single Market: Putting the Market into the Social

Abstract: The file associated with this record is embargoed while permission is sought from the publisher to archive.

The European Parliament and the Council indite an area of application for the directive on the award of concession contracts meant to combine the scopes of the directive on public sector awards and the directive on the award of utilities contracts

Abstract: Directive 2014/23 on concessions and the 'Frankenstein effect'* The more one analyses the content of Directive 2014/23 on concessions (the Concessions Directive), the more one realises that it is…

Exclusion, Qualitative Selection and Short-listing

Abstract: This paper provides some initial thoughts on the new rules on exclusion, qualitative selection and short-listing in the new public sector procurement directive bound to repeal Directive 2004/18. The assessment is based on a comparison with the equivalent rules under the current Directive, as well as on the problems and implementation difficulties that the author envisages.

Monitor and the competition and markets authority

Abstract: As part of its enforcement duties under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and in exercise of the powers assigned to it by the Health and Social Care Act 2012, the health care sector regulator for England (Monitor) is co-competent with the competition watchdog (Competition and Markets Authority) to enforce competition law in health care markets. Oddly, though, unlike other sector regulators, Monitor does not have a duty to promote competition but ‘simply’ to prevent anti-competitive behaviour. Monitor is also competent to carry out reviews and to decide bid disputes concerning procurement carried out by health care bodies, provided there is no formal challenge under the Public Contracts Regulations 2006.This paper contends that such a concentration of regulatory, competition enforcement and procurement review powers puts Monitor in a unique situation of (potential) structural conflict of interest that can diminish significantly its ability to act as an effective (co-competent) competition authority. This paper focusses on this difficult structure for the enforcement of competition law in the health care sector in England, in particular due to the asymmetrical, sui generis concurrency regime created by the Enterprise and Regulatory Reform Act 2013 and the Concurrency Regulations 2014. As examples of such conflict of interest and its implications, the paper assesses Monitor’s incentives to bend the interpretation of both art.101(3) TFEU and the new special regime on procurement of social services (arts.72-77 dir 2014/24). The paper concludes that this situation requires regulatory reform to devolve powers to the Competition and Markets Authority.

Enforcement of State Aid Rules for Services of General Economic Interest before Public Procurement Review Bodies and Courts

Abstract: One of the criticisms against the new rules applicable to the granting of State aid to finance the provision of services of general economic interest (SGEI) in the ‘Almunia package’ is that enforcement is likely to be their weakest point. Similarly, in the more general setting of the ‘private’ enforcement of State aid rules, the 2006 Study on the Enforcement of State Aid Law at National Level recommended that the European Commission create a common minimum standard of remedies applicable in all EU jurisdictions, stressing that ‘one possible means of creating such a standard would be to adopt a remedies directive for State aid cases, which could be modelled on the remedies directive for procurement cases’. Building up on these considerations, the extent to which the existing remedies within the system for the enforcement of EU public procurement rules provide an effective platform to enforce EU State aid rules (and, more specifically, those for the financing of SGEI) before public procurement review bodies and courts is assessed. The paper describes the main groups of cases where public procurement litigation ‘phagocytises’ State aid considerations. It then proceeds to explore the viability, from an EU law perspective, of configuring public procurement review bodies and courts as ‘State aid courts’ for the purposes of the simultaneous enforcement of both sets of rules in a single setting of ‘private’ litigation. It also submits that using the public procurement system in this way provides effective remedies for the enforcement of the Almunia Package for the financing of SGEI, and one that adds consistency in terms of harmonisation of the material rules to be applied.

Public Procurement: A 2014 Updated Overview of EU and National Case Law

Abstract: This revised foreword to a special issue of e-competitions explores the EU competition law implications of public procurement activities. More specifically, it tries to highlight how bid rigging seems pervasive in the public procurement setting despite increased enforcement efforts (a situation that should come as no surprise to economists) (Part I), how there are very significant limitations and almost absolute difficulties in curving the market behavior of power public buyers (Part II) and how other issues, such as the treatment of mergers or State aid in public procurement markets may require more refined analyses than those applied so far (Part III). References to EU and national case law are used to color the depiction of the current situation in the enforcement of EU competition law in the public procurement setting, but the selection of cases or jurisdictions considered does not attempt to be exhaustive. This second edition is updated to the content of Directive 2014/24 on public procurement and includes some recent cases in selected jurisdictions.