If it Ain't Broke, Don't Fix It’? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts

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.

The Emergence of Trans-EU Collaborative Procurement: A 'Living Lab' for European Public Law

Abstract: Trans-EU collaborative procurement is a fertile ‘living lab’ for the observation, theorisation and critical assessment of developments in European public law. This paper maps the emergence of this novel type of cross-border administrative collaboration and scrutinises the new rules of Directive 2014/24/EU, which evidence the tension between promoting economic co-operation across borders within the internal market and the concern to respect the Member States’ administrative autonomy. The paper critically assesses the EU legislative competence in this area, extracts consequences for balancing trans-EU collaboration with ‘mandatory public law requirements’ at Member State level and proposes minimum functional guarantees to be expected in the implementation of trans-EU collaborative procurement.

Alternative Dispute Resolution in European Administrative Law

Abstract: Chapter 1: Administrative Appeals in Germany by Ulrich Stelkens- Chapter 2: Alternative Dispute Resolution in French Administrative Proceedings by Rhita Bousta and Sagar Arun- Chapter 3: Administrative Appeals in the Italian Law: On the Brink of Extinction or Might They Be Saved (And Are They Worth Saving)? by Mario Comba and Roberto Caranta- Chapter 4: The Dutch System of Dispute Resolution in Administrative Law by Philip Langbroek, Milan Remac and Paulien Willemsen- Chapter 5: Administrative Appeals and ADR in Danish Administrative Law by Inger Marie Conradsen, Michael Gotze- Chapter 6: The Complexity of Administrative Appeals in Belgium: Not Seeing the Woods for the Trees by Ludo M Veny- Chapter 7: Administrative Justice in Austria in the Stage of Transition: From Administrative Appeals to Administrative Courts or the Final Stage of "Tribunalization" of Administrative Disputes by Friederike Bundschuh-Rieseneder and Alexander Balthasar- Chapter 8: ADR Tools in Spanish Administrative Law by Susana Galera, Pablo Acosta and Helena Soleto- Chapter 9: ADR in the Administrative Law - A Perspective from the United Kingdom by David Marrani and Youseph Farah- Chapter 10: Administrative Appeals and Other Forms of ADR in Hungary by Anita Boros and Andras Patyi- Chapter 11: Administrative Remedies in Polish Administrative Law by Andrzej Skoczylas and Mariusz Swora- Chapter 12: Effective Conflict Resolution in Administrative Proceedings in Slovenia - A Theoretical and Empirical Analysis by Polonca Kovac- Chapter 13: Administrative Appeals, Ombudsman and Other ADR Tools in the Czech Administrative Law by Sona Skulova, Lukas Potesil, David Hejc- Chapter 14: The Dynamic of Administrative Appeals and Other ADR Tools in Romania by Dacian C Dragos, Bogdana Neamtu and Raluca Suciu- Chapter 15: Serbia as a Part of the European Administrative Space - ADR Tools Applied to Administrative Law by Vuk Cucic- Chapter 16: Alternative Dispute Resolution Mechanisms in the European Union Law by Siegfried Magiera and Wolfgang Weiss- Chapter 17: Administrative Appeals in Comparative European Administrative Law: What Effectiveness? by Dacian C Dragos and David Marrani- Chapter 18: The Ombudsman - An Alternative to the Judiciary? by Milan Remac- Chapter 19: Mediation in Administrative Proceedings: A Comparative Perspective by KJ de Graaf, AT Marseille and HD Tolsma

The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies

Abstract: There currently appears to be considerable confusion amongst regulators and stakeholders over the purpose of the EU’s directives on public procurement and lack of a clear vision of what the directives seek to achieve. Against this background this article has two objectives. First, it seeks to provide a framework for understanding the directives’ functions and their relationship with national policy. In this respect it identifies the ends and means that the directives do, or could, adopt and/or which have been ascribed to them, and considers the implications of each for national regulatory space. Secondly, for each of the ends and means it suggests a specific legal interpretation of its actual and potential role in the EU’s legal framework. It is argued that the directives seek to promote the internal market and that they seek to do so solely by three means—prohibiting discrimination, implementing transparency, and removing barriers to access. It rejects, on the other hand, certain broader conceptions of the directives, including that they promote a single market by standardising procedures; that they replicate in the public market the competitive process of the private market; and that they seek value for taxpayers’ money. It is argued that rejection of these broader functions has important implications for the scope of national regulatory space, both as regards the ‘commercial’ aspects of public procurement—notably ensuring value for money and an efficient procurement process—and as regards ‘horizontal’ policies in the sense of policies that promote social and environmental objectives through public procurement.

The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights

Abstract: The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the “implementation of EU law,” has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.