Ioan Baciu

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 307 - 325

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.

Ioan Baciu

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 1, Page 73 - 77

Paul Heijnsbroek

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 1, Page 69 - 70

Miltiades C. Elliotis

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 2, Page 91 - 102

After the UK’s momentous vote to leave the EU, in June 2016, a significant number of public sector officials, began wondering about the future of public procurement in the UK and in the EU, during the post-Brexit period. The consequences of Brexit in this area, as in many others, are in fact difficult to predict; they depend essentially on future political decisions, particularly on the UK’s relationship with the EU. What is clear is that the current procurement regulations will remain in the UK as they are, during the negotiating period , which will probably last until the end of 2019. How will procurement be regulated after that? Certainly, there will be no change in procurement regulations in the EU. What about the corresponding UK regulations? One realistic possibility is that the UK will negotiate a trade agreement with the EU that covers public procurement. Therefore, this could allow the UK to apply the EU procurement regime exactly as it is now. This means that the UK will leave the EU but still be a party to the European Economic Area (EEA) Agreement. Consequently, there will be no change in the procurement regulations in the UK since in essence the EEA applies the same rules on public procurement as the EU does. A second option is for the UK to negotiate another type of trade arrangement with the EU which would certainly include public procurement provisions and it is possible, that these would be the same as those under EU/EEA rules. A third possibility is that the UK will not conclude any specific trade agreement with the EU but that UK trade will be based simply on commitments under the WTO agreements such as the Government Procurement Agreement (GPA) and the General Agreement on Tariffs and Trades (GATT) that currently apply for the UK as part of the EU. A final option is for the UK not to commit to any trade agreements that constrain its strategy for regulating public procurement. This means that with this option it will be difficult to predict the final form of UK public procurement law. All these scenarios are discussed in the present work.

Uche Nnawulezi

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 338 - 343

This paper examines the legal framework for public procurement in Nigeria. Basically, the paper examines the applicable legislative framework to public procurement in Nigeria by looking at other statutes containing provisions that, though not specifically focused on public purchase, nevertheless very important to the way government goes about its fiduciary relationship and responsibility in public purchase and acquisition. Consequently, there has been a plethora of constitutional, statutory and administrative provisions, regulations and standards that must be adhered to in public procurement. Aside the above provisions, this paper notes that public procurement is not an item for legislation under the executive and concurrent lists. This paper relied on documentary evidence and hence scooped many secondary sources including research reports emanating from public procurement. More importantly, necessary recommendations are made. The paper concludes that the essence of enacting public procurement law is to ensure the establishment of a regulatory authority, responsible for harmonizing government policies on procurement in Nigeria. Keywords: Public Procurement; Legal Framework; Nigeria; Regulatory Authority.

Steven Van Garsse

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 293 - 300

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts and public procurement Directives 2014/24 and 2014/25 were transposed into the Belgian legal system by the Public Procurement Act of 17 June 2016 and the Concession Act of 17 June 2016. The legislation entered into force on 30 June 2017. The main features of the public procurement and concessions regulations are in line with the European Directives. Belgian public procurement and concession rules are not a slavishly copy of the directives however. This contribution discusses some particularities and choices made by the Belgian legislator. A number of provisions are criticized, especially as doubts arise as to their compatibility with European Law. Keywords: Public Procurement; Concessions; Legislation; Implementation; Particularities.

Deividas Soloveičik, Karolis Šimanskis

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 2, Page 112 - 131

The concept of conflict of interests is the emerging theme in both the EU public procurement doctrine and legal practice. This article is an endeavour to examine the roots of conflict of interests and to understand if generally applicable features of the concept are equally relevant in public procurement law. It will be shown that there are different types of conflict of interests which are relevant, namely to the practice of public procurement and having the sui generis nature. The publication includes the thorough examination of the EU and Lithuanian case-law related to the conflicts of interest as well as the analysis of the relevant provisions of the Directive 2014/24. Keywords: Public Procurement; Lithuania; Conflicts of Interest; eVigilo; Supreme Court; Directive 2014/24.

Andrzej Panasiuk, Lukasz Jarocki

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 2, Page 192 - 200

This article intends to encourage discussion on the case law of the Court of Justice of the European Union (CJEU) and its impact on both European public procurement law in form of directives and national regulations adopted by the European Union (EU) countries. The authors want to indicate the role that the Court’s jurisprudence plays not only in relation to interpretation of existing regulations but also its direct impact on national legal systems. First, the historical evolution of the CJEU and the significance of its case law, with regard to interpretation of the Union law, is discussed. Then, the development of European public procurement law, mainly related to changes made in EU treaties and directives, is presented. Subsequently, the case law of the CJEU and its influence on application, interpretation and to some extent the shape of the European public procurement regulations is examined. In order to prove the existence of the direct impact of the CJEU’s jurisprudence on the shape of Polish public procurement regulations, the development and evolutions of two legal institutions – ‘in-house’ and ‘bodies governed by public law’, which have been the subject of numerous case studies of the Court – is discussed. The concepts developed by the CJEU’s case law and the solutions included in European directives are analysed in order to provide answer to what extent the Polish legislature was inspired by these independently perfected structures of both legal institutions. Such a comparison allows one to determine whether the Polish legislature directly adopted the solutions from the case law of the CJEU and therefore assess the reputation and the role the CJEU plays in law-making processes at the national level. Keywords: CJEU; Judicial Policy-Making; Public Procurement; Poland.

Dacian C. Dragoş, Alexandra Horváthová

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 3, Page 266 - 280

Public procurement is the process by which governments as well as other bodies governed by public law purchase products, services and public works. The European Union has adopted legal tools to introduce a certain standard of procedures across its Member States. Nevertheless, there are challenges that remain to be addressed. This article focuses on one area directly connected to both transparency and integrity – conflict of interests. The article first analyses the concept of conflict of interests and how the EU has approached solving conflicts of interests within public procurement. The second part of the article looks into the specifics of two countries that continue to have challenges in addressing conflicts of interests – Romania and Slovakia.

Beatriz Martinez Romera, Roberto Caranta

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 3, Page 281 - 292

Climate change is an urgent matter, which calls for considering the potential, opportunities and challenges of public procurement for combating it. This article analyses the role that public purchasing plays in achieving and enhancing climate change mitigation in the EU, and delves into the specific climate and procurement legal framework after the 2015 Paris Agreement and the 2014 Procurement Directive. The EU rules are analysed to understand the evolution of environmental concerns, specifically climate change, in EU public procurement law over the last twenty years. The article shows how climate change may be accommodated in the light of these two developments, most crucially, under the 2014 procurement reform, which has happened against a backdrop of ongoing tensions between concerns for the proper functioning of the internal market and calls stressing the imperatives of sustainability.