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The Possibility to Reserve a Public Contract under the New European Public Procurement Legal Framework

DOI https://doi.org/10.21552/epppl/2018/4/9

Ioan Baciu


Over the years, and owing to a dramatic change in the social configuration of our continent, the initial arrangement consecrated by the Treaty Establishing the European Economic Community of 1957 has evolved, from an essentially economic structure, to an amazingly complex edifice defined by the ‘social market economy’. In this new context, public procurement has been given a central role, as a strategic tool in the implementation of various key social policy objectives. Only this has actually placed it deep in the clash between the traditional internal market rules and those pertaining to EU’s social policies. This article tries to spot the concrete place occupied in the described setting by the possibility to reserve a public contract (an institution discriminatory in its very essence) and how this valuable instrument has been transposed into the national legal framework of Member States. It also aims at showing how, in spite of the fact that, by the adoption of Articles 20 and 77 of Directive 2014/24, the general competition rules haven’t been annihilated but just adapted so to better correspond to the new EU landscape, the solution chosen by several Member States for transposition has in fact perverted their original purpose just to offer sufficient leeway for discrimination based on nationality grounds.
Keywords: Public contract reserve; Discrimination; Social policy; Strategic public procurement.

Mr Ioan Baciu is Managing Associate at Rubin Meyer Doru & Trandafir, L.P.C., Bucharest – affiliated with Herzfeld & Rubin, L.P.C., New York, former member of the European Commission Stakeholder Expert Group on Public Procurement, PhD Researcher at Babes-Bolyai University(UBB), Cluj Napoca, Romania and the University of Turin, Italy, and associate researcher at the Center for Good Governance Studies at the Public Administration Department of UBB.

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