Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 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

Mario Rašić

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 193 - 204

The purpose of this article is to provide a concise analysis of the rules applicable to the rejection of abnormally low and non-compliant tenders in the European Union. The paper will deal with a case decided by the European Court of Justice which deals with violations of rights or fundamental freedoms regarding the (potential) irregularities of tenders. The study is exploratory and interpretative in nature. Data used for this research is secondary data: the author analyses prior research, regulations and decisions of the European Court of Justice and national authorities. The first section of this paper will examine the history and development of the institute of abnormally low tenders within the European Union and Slovenian positive law. The main research part of the paper is the analysis of the most relevant cases stemming from the European Court of Justice. Finally, the main scientific contribution of this paper, in addition to the analysis, is the de lege ferenda observations, which may contribute to resolving challenges related to abnormally low tenders in the EU. Keywords: abnormally low tenders, Directive 2014/24/EU, award criteria

Vincent P. Wangelow

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 107 - 123

In 2014, a newly enacted set of directives sought to reform the EU Public Procurement Regime, promoting stronger harmonisation but also more flexibility in procurement activities throughout the European Union. Amendments to public contracts after the award have long been a grey area, both for contracting authorities and tenderers alike. However, given the economic importance of public procurement for the European economy, the sound functioning of procurement rules is key. Hence, the article aims to provide a comprehensive evaluation of the new provisions, especially as far as amendments to public works contracts due to the necessity of additional works (following, inter alia, inadequate planning) and unforeseeable circumstances (typically entailing delays, cost overruns etc.) are concerned. In this respect, drawing on sources from legal scholarship of different EU Member States (eg, Germany, France, Spain) and the UK, this article provides an analysis of the rules on post-award amendments to public contracts with an emphasis on Article 72 of Directive 2014/24/EU. To identify the underpinning ideas of these rules, the article considers policy goals and constraints as well as the relevant case law of the Court of Justice of the European Union. Keywords: public works contracts, EU public procurement, amendments, modifications, additional works and unforeseeable circumstances, Directive 2014/24/EU

Zbigniew Raczkiewicz

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 179 - 181

In January 2020 the Court of Justice of the European Union delivered its judgment in Case C-395/18. The Court said that the public procurement regime of the European Union does not preclude exclusion of a tenderer, if the ground for exclusion is applicable to one from its subcontractors. However, such exclusion shall not be automatic.

Jun Chong

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 168 - 173

Under the epidemic situation, materials are in short supply, but traditional procurement cannot meet the needs of emergency speed. This article compares and analyses the regular Chinese procurement methods with the US and EU emergency procurement methods, so as to obtain the methods suitable for China's emergency situation, and calls for emergency procurement legislation. At the same time, this article discusses the scope and principles of emergency procurement, emphasising that emergency procurement should not be abused and still follow the principle of value for money. Keywords: COVID-19, emergency public procurement, procurement methods, value for money, US public procurement, EU public procurement, China public procurement

Stéphanie De Somer, Laura Hofströssler

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 242 - 251

Over the past twenty years, the Court of Justice of the European Union rendered multiple judgments on the subject of exemptions from public procurement law. This case law has been consolidated in the current Public Procurement Directive. The cases examined in the present annotation offered the Court a first opportunity to further clarify the non-institutionalised cooperation exemption in light of this Directive. The Court has seized this occasion to emphasise its strict position on exempted non-institutionalised cooperation once again.

Christina D. Tvarnø

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 200 - 208

This article analyses Climate Public Private Partnerships in the light of EU climate law and includes an economic perspective to explain the objectives and efficiency behind Climate Public Private Partnerships. Climate Public Private Partnerships are regulated by EU public procurement law for which reason the legal cross field between EU climate law and EU public procurement law is analysed to evaluate how EU law supports Climate Public Private Partnerships. Furthermore, the article includes game theory as an instrument to assess Climate Public Private Partnerships under EU law. The article concludes that EU law does not include the sufficient legal support to provide efficient Climate Public Private Partnerships as a tool to reach Europe’s climate goals. Keywords: Climate Public Private Partnership, climate law, EU Climate Law Regulation, efficiency, game theory

Christina D. Tvarnø

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 282 - 291

The article concerns Public Private Partnerships and the value for money principle. The article presents an analysis of the British value for money principle, the lack of similar principle in the EU public procurement law and the importance of value for money in regard to Public Private Partnerships. This article does not question the key principles of transparency, equal treatment, proportionality, non-discrimination, and competition but discusses the value for money as a relevant legal instrument in regard to Public Private Partnerships in EU public procurement law. Keywords: Public Private Partnerships, value for money, public procurement law, Britain, EU law

Stephen Clear, Gary Clifford, Dermot Cahill, Barb Allen

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 83 - 106

Despite over 30 years of legal harmonisation, stubbornly low levels of cross-border public procurement continue to persist in the EU. In 2016 the European Commission sought new thinking to address this long-standing problem. Drawing on a number of cross-border studies undertaken by the authors, the reasons for low level cross-border procurement penetration are identified. A new action-based framework to increase cross-border procurement is proposed, as are new ideas to make it easier to identify public contracts outside national borders. Suggestions for reforming tender evaluation practices that could encourage SMEs to overcome their aversion to ‘home bias’ are proposed, alongside a ‘balanced scorecard tool’ to guide SMEs making critical cross-border public procurement decisions. Keywords: SMEs, cross-border, EU public procurement, non-tariff-barriers, harmonisation

Raquel Carvalho

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 2, Page 70 - 78

This Part II concludes the paper published in EPPPL 1-2019 regarding the implementation of e-procurement in Portugal. In Part I, the evolution regarding e-procurement provisions within Public Procurement Directives from 2004 to 2014 was addressed. Part II now addresses how both the Public Contracts Code and the specific legislation regarding electronic platforms have transposed the 2014 Public Procurement Directives into internal law, namely: (i) how the transposition of articles 29, 22, 40 and annexes of the 2014 Directives was made [not only the legal regime but also how some litigious questions were taken (and solved) to national administrative courts]; (ii) how the first intention of the Legislator to transpose the 2014 Directives went; and (iii) how they were actually effectively transposed. As already referred to in Part I, the transposition of the 2014 Directives in Portugal was made through a two-step procedure. Article 22 of the 2014/24/Directive was regulated by Law 96/2015, a very extensive and complex regulation regarding e-procurement, while the remaining provisions of the 2014 Directives were transposed in 2017 after a period of public discussion of a very different draft. The path that has been built since 2004 is, thus, consolidated.