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The UK’s Green Paper on Post-Brexit Public Procurement Reform: journal article

Transformation or Overcomplication?

Albert Sanchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 4 - 18

In December 2020, seeking to start cashing in on its desired ‘Brexit dividends’, the UK Government published the Green Paper ‘Transforming Public Procurement’. The Green Paper sets out a blueprint for the reform of UK public procurement law that aims to depart from the regulatory baseline of EU law and deliver a much-touted ‘bonfire of procurement red tape’. The Green Paper seeks ‘to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery’. The Green Paper aims to do so by creating ‘a progressive, modern regime which can adapt to the fastmoving environment in which business operates’ underpinned by ‘a culture of continuous improvement to support more resilient, diverse and innovative supply chains.’ I argue that the Green Paper has very limited transformative potential and that its proposals merely represent an ‘EU law +’ approach to the regulation of public procurement that would only result in an overcomplicated regulatory infrastructure, additional administrative burdens for both public buyers and economic operators, and tensions and contradictions in the oversight model. I conclude that a substantial rethink is needed if the Green Paper’s goals are to be achieved. Keywords: public procurement; reform; deregulation; green paper; transforming public procurement; Brexit


Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ The EFTA Court’s Fosen-Linjen Saga on Procurement Damages: journal article

A There and Back Again Walk

Albert Sanchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 4, Page 248 - 254

The EFTA Court adopted two recent Judgments on the liability threshold for damages claims for breaches of EU/EEA public procurement law. In Fosen-Linjen I, it followed the so-called separation thesis of procurement damages and State liability and found that ‘A simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority … pursuant to Article 2(1)(c) of Directive 89/665/EEC’. In Fosen-Linjen II, the EFTA Court U-turned, adopted a unitary thesis and found that ‘Article 2(1)(c) of the Remedies Directive does not require that any breach of the rules governing public procurement in itself is sufficient to award damages’. This article provides an EU law perspective on the Fosen-Linjen saga by stating that Fosen-Linjen II represents the correct legal position, in particular in view of the minimum harmonisation carried out by the Remedies Directive. Thus, the EFTA Court was right to reverse its initial Judgment and to abandon the separation thesis. The article also submits that the CJEU would do well to (re)confirm the unitary thesis at the earliest opportunity, to avoid any perpetuation of this debate in the context of EU/EEA public procurement law. Keywords: Public procurement; Liability; Damages; State liability; Sufficiently serious breach; Simple breach; Causation; Effectiveness; Private enforcement; Public enforcement.

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