The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies
01 Jan 2012-Vol. 14, pp 1-47
TL;DR: In this paper, the authors provide a framework for understanding the directives' functions and their relationship with national policy, and suggest a specific legal interpretation of its actual and potential role in the EU's legal framework.
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.
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TL;DR: In this article, the authors adopted the Analytical Network Process and combined it with a new Risk Priority Index as an innovative approach to model risks analytically based on data collected from the Edinburgh Tram Network project at the construction phase.
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Posted Content•
01 Jan 2017
TL;DR: Ankersmit et al. as discussed by the authors explored how EU law constrains the freedom of the EU, the Member States, and private bodies to adopt measures that seek to protect social and environmental interests abroad by placing conditions on production processes in other states.
Abstract: This book explores how EU law constrains the freedom of the EU, the Member States, and private bodies to adopt measures that seek to protect social and environmental interests abroad by placing conditions on production processes in other states. The permissibility of such process-based measures has been examined primarily within the World Trade Organization (WTO) context, but the challenges that they present are equally for the EU internal market system. Ankersmit identifies three core challenges posed by process-based measures from an EU law perspective: extraterritoriality, unilateralism and the competitive and democratic problems created by private rule-making. It examines these issues in the context of free movement, competition, public procurement, and EU tax law. This book will appeal to academics, policy makers and practitioners interested in trade and environment, the social impact of trade law, and European and international market regulation.
28 citations
16 Aug 2018
TL;DR: In this article, the authors present a survey of the state of the art in the field of bioinformatics and bioengineering, and acknowledge the authors' work on this article.
Abstract: ......................................................................................................... 3 Acknowledgements ........................................................................................ 5
23 citations
TL;DR: In this article, the authors explored the potential of competition increasing performance in the delivery of 'probation services' in England and Wales, highlighting the constraints and challenges that stem from the public procurement rules and their manner of implementation, alongside the adverse impacts that competition can have upon organizational culture.
Abstract: Drawing upon empirical data collected during HMP Birmingham’s privatisation in 2011, this article explores the prospects of competition increasing performance in the delivery of ‘probation services’ in England and Wales. The constraints and challenges that stem from the public procurement rules and their manner of implementation are highlighted, alongside the adverse impacts that competition can have upon organisational culture. Together with current evidence about the (mixed) performance of privately managed prisons, the article argues that the Government’s faith in competition as a panacea solution to improve public services is misplaced and that too few lessons are being learned from commissioning mistakes.
13 citations
Cites background from "The Purpose of the EU Procurement D..."
...While it is fairly straightforward to sketch an outline of the key features of the procurement rules, their detail is complex and their scope and purpose(s) are highly contested (see especially Arrowsmith, 2012; Künzlik, 2013; Sánchez Graells, 2011)....
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TL;DR: In this article, the authors explore the recent OECD push for more competition in public procurement and its role as an influential factor in the ongoing reform of EU public procurement rules, and critically assesses three of the main challenges to keeping public procurement precompetitive: (i) the difficult balance in terms of procurement transparency created by the clash between competition and corruption concerns; (ii) the magnification of the undesired (potential) anticompetitive effects of public procurement that centralised procurement may generate, as well as its increasing use as an improper tool of market regulation.
Abstract: The relationship between public procurement and competition has recently been receiving an increasing amount of attention, both in academic and policymaking circles. It is becoming common ground that public procurement holds a complex and bidirectional relationship with market competition and that, consequently, a tighter link between public procurement and competition law enforcement needs to be established.This paper explores the recent OECD push for more competition in public procurement and its role as an influential factor in the ongoing reform of EU public procurement rules. Afterwards, it critically assesses three of the main challenges to keeping public procurement precompetitive: (i) the difficult balance in terms of procurement transparency created by the clash between competition and corruption concerns; (ii) the magnification of the undesired (potential) anticompetitive effects of public procurement that centralised procurement may generate, as well as its increasing use as an improper tool of market regulation; and (iii) the possible competitive distortions and the potential advantages resulting from the generalization of eProcurement. The conclusions extract some common patterns derived from the previous analysis and suggest some policy recommendations mainly oriented at boosting oversight and professionalization of procurement.
10 citations
References
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TL;DR: In this paper, the authors discuss the relationship between EC Law and National Law: Supremacy, proportionality, legitimate expectation, non-discrimination, and transparency, as well as the nature of EC Law: Direct and Indirect Effect.
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TL;DR: In this article, the authors introduce the issues of free movement of goods and services in the EU, and provide an overview of the issues involved in the free movement and the economic and monetary union.
Abstract: PART I INTRODUCTION 1. Introduction to the issues PART II FREE MOVEMENT OF GOODS 2. Introduction to the free movement of goods 3. Article 25 (customs duties and charges having equivalent effect) and Article 90 (internal taxation) 4. Quantitative restrictions and measures having equivalent effect under Articles 28 and 39 5. Article 28 and certain selling arrangements 6. Derogations and justifications 7. External economic relations of the EU: the common commercial policy PART III FREE MOVEMENT OF PERSONS AND SERVICES 8. Introduction to the free movement of persons 9. Free movement of workers 10. Freedom of establishment 11. Freedom to provide and receive services 12. Union citizenship 13. Derogations, limitations, conditions, and justifications 14. Third-country nationals and the EU PART IV FREE MOVEMENT OF CAPITAL 15. Free movement of capital and economic and monetary union PART V COMPLETING THE SINGLE MARKET 16. Regulating the internal market
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