Reformation or Deformation of the EU Public Procurement Rules

Using an innovative ‘law and political science’ methodology, this timely book carries out a critical assessment of the reform of the EU public procurement rules. It provides a rich account of the policy directions and the spaces for national regulatory decisions in the transposition of the 2014 Public Procurement Package, as well as areas of uncertainty and indications on how to interpret the rules in order to make them operational in practice. Most EU law research focuses on the content of rules and the impact of case law on their interpretation and application. It rarely discusses how the CJEU’s case law influences the creation of new rules, or the way EU law-makers enact them – issues which, conversely, are a staple for political scientists. By blending both approaches this book finds that political science provides a useful framework to describe the law-making process and shows that the influence of the CJEU was significant. Though the specific case studies identify many reforms, the ultimate assessment is that EU public procurement law was deformed. Offering a clear contribution to the emerging scholarship on ‘flexible’ EU law-making, this book’s novel methodology will appeal to scholars and students of both law and political science. Law- and policy-makers as well as legal practitioners will also find its practical approach compelling.

Contents: PART I: INTRODUCTION AND ANALYTICAL FRAMEWORK Introduction Grith Skovgaard Ølykke and Albert Sanchez-Graells 1. The EU Legislative Process. An Introduction from a Political Science Perspective Doreen Allerkamp PART II: REFORMS INTRODUCED BY THE COMMISSION 2. The Evolution of EU Public Procurement Rules and its Interface with WTO: SME Promotion and Policy Space Kamala Dawar and Monika Skalova 3. A Deformed Principle of Competition? – The Subjective Drafting of Article 18(1) of Directive 2014/24 Albert Sanchez-Graells 4. E-Procurement between EU Objectives and the Implementation Procedures in the Member States—Article 22(1) of the 2014 Directive Petra Ferk 5. Division into Lots and Demand Aggregation – Extremes Looking for the Correct Balance? Ignacio Herrera Anchustegui 6. The Provision on Abnormally Low Tenders: A Safeguard for Fair Competition? Grith Skovgaard Ølykke 7. A Lost Proposal in the 2014 Public Procurement Package: Is there any Life for the Proposed Public Procurement Oversight Bodies? Pedro Cerqueira Gomes PART III: REFORMS INTRODUCED BY THE COUNCIL 8. The Provision on Services of General Economic Interest in the 2014 Directive – Pure Reiteration of the Obvious? Cecilie Fanøe Petersen and Grith Skovgaard Ølykke 9. Clarification or Missed Opportunity? The Provision on Framework Agreements in the 2014 Directive Marta Andrecka 10. Requesting Additional Information – Increase of Flexibility and Competition? Carina Risvig Hamer 11. Exclusion and Self-Cleaning in Article 57: Discretion at the Expense of Clarity and Trade? Sylvia de Mars 12. Modification of Contracts during their Term: Principle or Exception? – A View from the Perspective of Negative Externalities Tim Bruyninckx PART IV:REFORMS INTRODUCED BY THE PARLIAMENT OR RESULTING FROM A EUROPEAN CITIZENS’ INITIATIVE 13. Subcontracting Matters: Articles 43 and 71 of the 2014 Directive Richard Craven 14. The Magic of Five in the Duration of Concessions: Refining Corollaries in the Concessions Directive Johan Wolswinkel 15. Public Goods, Special Rights and Competitive Markets: Right2Water and the Utilities Procurement Regime Eleanor Aspey PART V CONCLUSIONS 16. Under the Political Science Magnifying Glass: Reformation or Deformation of the EU Public Procurement Rules in 2014? Albert Sanchez-Graells and Grith Skovgaard Ølykke Index