Marco Ceruti

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 2, Seite 124 - 137

This article explores the exclusion of certain legal services from Directive 2014/24/EU, in relation to the Italian case, where the notion of ‘contract’ (‘appalto’) is opposed to the ‘intellectual/professional work contract’ (‘contratto d’opera’), although the concept of ‘contract’, not that of ‘appalto’, does appear in the European directives. So, with reference to the single legal assignment, a lot of attention must be paid to the terminology. In addition, on the assumption that a public utilitas, albeit modest, must be made contestable, more and more within a traditionally closed market of consolidated (hereditary, I would say) positions that in some ways reproduce a medieval feudal system, it is clear that, by way of a public evidence, some ‘grey areas’ of public administration, where the management of the res publica is intertwined with business and clientelism, generating corruption and malfeasance, in any case precluding impartiality, would be eliminated at the root. Keywords: public procurement, national legislation, exclusion of certain legal services, principles of equal treatment and subsidiarity

Zbigniew Raczkiewicz

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 2, Seite 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.

Peter Hettich, Daria Lenherr-Segmüller

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 2, Seite 182 - 185

Lorenzo Cioni

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 4, Seite 310 - 313

Giuseppe Bitti

European Procurement & Public Private Partnership Law Review, Jahrgang 14 (2019), Ausgabe 2, Seite 129 - 133

The Case deals with the exclusion from procurement procedures of tenderers which are part of the same association, due to possible collusions among them. The Court of Justice of the European Union was asked whether national legislation which foresees additional exclusion grounds, forbidding undertakings which are part of the same associative or corporate structure from participating in tendering procedures through a common proxy, complies with EU law. The Court clarified the issue, and confirmed that the general principles of equal treatment, transparency and non-discrimination allow national legislation to foresee further grounds for exclusion, in addition to those mentioned by Directive 2004/18. Such legislation shall nonetheless comply with and be interpreted according to the equally important principle of proportionality.

Teymour Aliyev

European Procurement & Public Private Partnership Law Review, Jahrgang 14 (2019), Ausgabe 1, Seite 55 - 62

The Republic of Azerbaijan, as a young member of the Council of Europe, which ratified and implemented to its legislation the provisions of numerous conventions against corruption as well as other international agreements on combating transnational crimes, money laundering and other corruption-related misconduct, and by being a developing country and benefiting from loans and other funds provided by the World Bank Group (WBG), should substantially upgrade its anti-corruption legislation and especially in the procurement area in order to keep pace with fast changing international standards. Whilst the concept of corruption may be more or less universal both in the national legislation and international normative documents, the notions of fraud and other ‘corruption-related’ misbehaviour in laws of Azerbaijan should be clearly defined and advanced to match the definitions used by the WBG and other multilateral development banks. And when they are legibly defined, the grounds for the exclusion and debarment of bidders and contractors committing such misconduct and sanctions should be broadened and differentiated with an eye to ensure fairness of the procurement process and harmonization with regulations applied internationally. In this work the terms of corruption, forgery, fraud and coercion according to the national legislation of Azerbaijan and the WBG standards have been analysed and compared. Further, in order to demonstrate legal shortages and loopholes at the national level, the legal grounds for the exclusion and debarment of bidders committing corruption-related acts at procurement procedures in Azerbaijan and its champion company SOCAR, and the type of applicable sanctions, with comparison to the provisions of the suspension and debarment standards employed by the WBG, have been described. Finally, the author has tried to offer proposals on the elimination of regulatory gaps for the purpose of ensuring the effectiveness and fairness of procurement-related exclusion and debarment process in Azerbaijan. Keywords: Corruption-related Misconduct; Sanctions; Exclusion; Debarment; World Bank Group; Procurement legislation.

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Jahrgang 14 (2019), Ausgabe 3, Seite 197 - 202

This paper explores the exclusion of certain legal services from Directive 2014/24/EU, in relation to the judgment of the CJEU in the P.M. e a. Case, stating that legal services provided by a lawyer are to be conceived only in the context of a relationship intuitu personae between the lawyers and their client, characterised by the utmost confidentiality and by the free choice of representative, at the same time leaving for national legislatures to determine whether those services should be subject to public procurement rules. Keywords: Public procurement; National legislation; Exclusion of certain legal services; Principles of equal treatment and subsidiarity.