If it Ain't Broke, Don't Fix It’? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts
TL;DR: In this paper, the authors take issue with the shelving of the revision process and critically assess whether the Remedies Directive is still fit for purpose, and suggest that the European Commission should relaunch the review process as a matter of high priority.
Abstract: EU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. This chapter takes issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose. The chapter focuses on selected issues, such as the interplay between the Remedies Directive and the Charter of Fundamental Rights, and with the general administrative law of the Member States. It also assesses the difficulties of applying the Remedies Directive ‘as is’ to some of the new rules of the 2014 Public Procurement Package, which creates uncertainty as to its scope of application, and gives rise to particular challenges for the review of exclusion decisions involving the exercise of discretion. The chapter also raises some issues concerning the difficulties derived from the lack of coordination of different remedies available under the Remedies Directive and briefly considers the need to take the development of ADR mechanisms into account. Overall, the chapter concludes that there are important areas where the Remedies Directive requires a revision, and submits that the European Commission should relaunch the review process as a matter of high priority.
Citations
More filters
TL;DR: In this paper, the authors provide 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.
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.
3 citations
14 Oct 2010
2 citations
TL;DR: In this article, the authors assess the EU legislative competence in this area, extract consequences for balancing trans-EU collaboration with "mandatory public law requirements" at Member State level and propose minimum functional guarantees to be expected in the implementation of Trans-EU collaborative procurement.
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.
1 citations
References
More filters
TL;DR: In this paper, the future place of judgements of the European Court of Human Rights in EU jurisprudence is examined against the backdrop of the recent (negative) Opinion of the Court of Justice on EU accession to the European Convention of human rights.
Abstract: This paper addresses two issues of primary importance to the protection of fundamental rights in EU. First, it examines the future place of judgements of the European Court of Human Rights in EU jurisprudence against the backdrop of the recent (negative) Opinion of the Court of Justice on EU accession to the European Convention of Human Rights. Secondly, the paper explores the notion of the scope of application of EU fundamental rights with regard to Member States action in the light of the ruling of the Court of Justice in Arkerberg Fransson. With regard to the former question, it will be here argued that the case law of the Court of Human Rights maintains its position in the EU legal system due to the combined effects of Article 6 (3) TEU and Article 52 (3) of the EU Charter of Fundamental Rights. From the point of view of the Convention, the same is reflected in the 'Bosphorus' jurisprudence of the Court of Human Rights. As regards the second issue, the demarcation between the parameters of EU fundamental rights protection and the sphere in which Member State law retains exclusive responsibility over fundamental rights has been afforded deeper precision, both by the cases of Akerberg Fransson itself and in subsequent rulings. this is considered to be a welcome development.
7 citations
01 Jan 2006
6 citations
01 Jan 2010
TL;DR: The question of who exactly benefits from the Treaties, in the sense of enjoying rights of standing to enforce Union law before the national courts, presents both surprisingly difficult challenges and promising research issues for the future as discussed by the authors.
Abstract: The question of exactly who benefits from the Treaties, in the sense of which range of persons and bodies should be recognised as legally competent to enforce any given provision of Union law before the national courts, is surprisingly murky. This lack of clarity is due partly to the inherent complexity of the question, as well as to the complication posed by the interdependent relationship between the Union and national legal orders. The confusing approach adopted by the Court of Justice compounds the matter. This chapter discusses some observations on why this is a question which poses particular policy challenges for the Union legal order, before going on to summarise the relevant tools employed by the Court of Justice when addressing issues about the decentralised enforcement of Union law by private and public actors. It is argued that, despite the apparent confusion, it is possible to construct a workable division of labour between the role of Union law in defining its own protective scope (on the one hand) and the discretion of each Member State over access to the courts for the enforcement of Union law (on the other hand). A detailed analysis of the case law is conducted in order to identity the weakest links in the system, or at least those which suffer from the greatest degree of doctrinal and conceptual neglect. The question of who exactly benefits from the Treaties, in the sense of enjoying rights of standing to enforce Union law before the national courts, presents both surprisingly difficult challenges and promising research issues for the future.
4 citations
Journal Article•
4 citations
TL;DR: In this paper, a study of legal loopholes and uncertainties that occur during public procurement of framework agreements as a result of current EU rules and national practices in Denmark and the United Kingdom is presented.
Abstract: Provision on framework agreements has been introduced into European Union (EU) Law in 2004. Since then framework agreements have gained popularity and importance on the European Union (EU) public tender market. Nevertheless, the use of frameworks poses significant legal challenges necessitating the clarification of the governing rules and the introduction of further guidelines. Unfortunately, clarifications were not fully provided in the new Directive 2014/24/EU. This article is a study of legal loopholes and uncertainties that occur during public procurement of framework agreements as a result of current EU rules and national practices in Denmark and the United Kingdom. The article highlights the need for clarification of the existing rules and introduction of transparency to the subsequent call-off stage of framework agreements. To achieve study aims, three methods were applied: a doctrinal analysis, a small scale comparative law research and field research based on qualitative research by the means of semi-structured interviews.
4 citations