Rachel Scheele, Grith Skovgaard Ølykke

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 139 - 149

This article analyses the application of competition rules to abnormally low tenders. The purpose is to determine whether – and under which circumstances – abnormally low tenders may constitute violations of Articles 101 and 102 TFEU, as well as how contracting authorities may or should proceed in case of potential infringements of competition law. It is concluded that abnormally low tenders may indeed violate EU competition law, which can lead to distortions of competition in public procurement markets in the short and/or long run, resulting in a decrease of social welfare. The parallel existences of the two sets of rules that regulate low prices – but which do not entirely coincide – do not seem to facilitate enforcement of competition law violations, which is crucial to obtaining efficient public procurement. Some proposals for a more competition-oriented approach to abnormally low tenders are provided. Keywords: Article 101 TFEU; Article 102 TFEU; Directive 2014/24/EU; bid-rigging; predatory pricing; principle of equal treatment

Pauline Cabany

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 3, Page 221 - 225

Annotation on the Judgment of the Court of Justice of the European Union (Fourth Chamber) of 15 September 2022 in Case C‑416/21 Landkreis Aichach-Friedberg v J Sch Omnibusunternehmen and K Reisen GmbH On 15 September 2022, the Court of Justice of the European Union delivered its judgment concerning the interpretation of Article 57 of Directive 2014/24 following the questions referred to by a German court.1 The case concerns the exclusion of two tenders, submitted by the same person on behalf of two different companies, from the award of a public contract for public transport bus services. The questions referred were aimed at determining the scope of the exclusion ground based on breach of competition law and clarifying the articulation between Article 57 of Directive 2014/24 and the principle of equal treatment. The CJEU clarifies that Article 57(4)(1)(d) of Directive 2014/24 has a broader scope than Article 101 TFEU since it also covers economic operators which have entered into agreements that do not fall within Article 101 TFEU. The CJEU also reiterates that the exhaustive list of optional grounds for exclusion provided for in Directive 2014/24 does not prevent the principle of equal treatment from precluding the award of the contract to economic operators which constitute an economic unit and whose tenders are neither autonomous nor independent.

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

Marco Ceruti

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

Julien Gaul, Vera Van Thuyne

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 236 - 241

The annotated case deals with the particular situation of a preselected candidate in a restricted procedure who has agreed to acquire another preselected candidate, under a merger agreement concluded between the preselection stage and the tendering stage, but completed after the tendering stage. The absorbing candidate eventually submitted a tender while the absorbed candidate did not. The CJEU decided that there was no reason to state, in view of the circumstances of the case, that the tender should be excluded. According to the Court of Justice, even though the substantive identity of the preselected candidate had changed before submitting the tender, there was no violation of the principle of equality, since the tenderer still complied with the selection criteria. It could also not be presumed that the two preselected candidates had exchanged sensitive information that put the other tenderers at a competitive disadvantage.

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 3, Page 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.

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 3, Page 234 - 240