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Die Suche erzielte 4 Treffer.

The Use of Languages in Public Procurement Procedures: Journal Artikel

A Hidden Non-Tariff Barrier to Free Movement?

Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 2, Seite 71 - 80

In the European Union, the award of public contracts by contracting authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. In principle, all procurement procedures start with a contract notice which is used as a means of calling for competition in respect of all procedures. By informing all economic operators about the possible business opportunities, European public procurement rules seek to promote competition and aim to open up the procurement market to undertakings beyond national borders. This is expected to lead to lower prices and more choice. Contract notices include information on the language(s) in which tenders or requests to participate must be drawn up which entails that economic operators are bound to draw up their tender proposal in the language(s) chosen by the contracting authority. It is not hard to imagine that this may seriously hinder free movement and restrict competition in the internal market. This contribution will focus on the use of languages in public procurement procedures and reflect on whether Directive 2014/24/EU, which finds it legal basis in the Articles 53(1) TFEU on freedom of establishment, 62 TFEU (free provision of services) and 114 TFEU (approximation of provisions relating to the establishment and functioning of the internal market) is not in itself hindering free movement by its regulation on languages. Keywords: language; non-tariff barrier; free movement; cross-border procurement; procedure


Public Procurement, Culture and Mozzarella: ‘Que Dici?’ Journal Artikel

Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 3, Seite 205 - 219

Directive 2014/24/EU on public procurement establishes rules on the procedures for procurement by contracting authorities with respect to public contracts as well as design contests, whose value is above the European thresholds. Next to purely economic goals, the Directive incorporates common societal goals and aims to contribute to environmental and social objectives and sustainable innovation as well. Directive 2014/24/EU does not refer to cultural considerations in general. It only contains a specific exclusion from the scope of application of the Directive for audiovisual or radio media services and indicates that a special regime is applicable to certain social and other specific services as it is believed that they have by their very nature a limited cross-border dimension. These ‘special’ services are provided within a national context that varies among the Member States due to different cultural traditions. For the procurement of works, supplies and services that do not fall within this special category, specific cultural considerations seem not to be warranted. While on the one hand, procurement procedures have to be applied in conformity with the principle of equal treatment so that all tenderers must have equality of opportunity when formulating their tenders, Article 167 of the Treaty on the Functioning of the European Union holds that Member States are the principal actors in charge of the flowering of their cultures, that the EU should contribute to this and that it should respect the Member State’s national and regional diversity. This article will investigate whether and in how far Directive 2014/24/EU allows room for national contracting authorities to explicitly and implicitly take cultural concerns into account in procurement procedures. The purchase of ‘Mozzarella’ by means of a procurement procedure will serve as an example to analyse whether cultural considerations can implicitly play a role to overcome the ‘buy local’ prohibition, even for products that enjoy a protected designation of origin. Keywords: Directive 2014/24/EU, culture, equal treatment, public interest


Self-Cleaning and Leniency: Comparable Objectives but Different Levels of Success? Journal Artikel

Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 1, Seite 3 - 17

Leniency policies within the framework of competition law make it possible for companies involved in a bid rigging cartel to obtain either total immunity or a reduction of fines. Such policies have proven to be very successful as most cartels that have been detected in the EU were revealed by a cartel member applying voluntarily for leniency. While leniency policies in the course of competition law are also very successful in the United States, self-cleaning possibilities within the framework of public procurement law, such as voluntary disclose of wrongdoings, exist as well but have been sparingly used by firms and individuals involved in misconduct. To overcome the lack of incentive effects, the US Federal Acquisition Regulation was revised in 2008 so that firms and individuals face the risk of suspension or debarment not only for misconduct itself, but also for the failure to report such misconduct. A system of mandatory disclose of information was hence introduced. By studying the underlying rationale of leniency and self-cleaning policies and by comparing the EU and US system of self-cleaning, this articles tries to explain the level of success of leniency programmes vis-à-vis incentive-based self-cleaning policies and tries to establish whether the EU’s self-cleaning policy as codified in Directive 2014/24/EU will be effective to increase integrity in public procurement.


Public Procurement, Public Private Partnerships and State Aid Rules: A Symbiotic Relationship Journal Artikel

Phedon Nicolaides, Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Jahrgang 9 (2014), Ausgabe 1, Seite 50 - 69

In January 2014, the European Parliament has approved the new legislative package on Public Procurement. The new regime is expected to be more accessible for SMEs, less complex andmore flexible. The increased flexibility which gives rise to greater discretion to Contracting Authorities, specifically in the light of the new competitive negotiated procedure, may however create a greater risk of favouritism. However, when public authorities purchase supplies, services or

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