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Towards Deforestation-Free Public Procurement? journal article open-access

Reflections on the Interplay between the Deforestation Regulation (EUDR) and Public Procurement in the EU

Chiara Falvo, Federica Muscaritoli

European Procurement & Public Private Partnership Law Review, Volume 19 (2024), Issue 2, Page 91 - 103

Deforestation and forest degradation are significant environmental and socio-economic challenges, primarily driven by the global demand for certain agricultural commodities and products. To respond to increasing pressures from EU stakeholders and curb consumption-driven deforestation, the EU recently adopted Regulation 2023/1115, the EU Deforestation Regulation (EUDR). The EUDR applies to a list of goods strongly linked to deforestation and forest degradation and often part of global and complex supply chains. Under the EUDR, relevant commodities and products can be placed on or exported from the EU market only if they are deforestation-free and legally produced. To this end, the Regulation foresees targeted due diligence obligations for market actors to ensure the traceability of their supply chains, collect information, and assess and mitigate risks. The EUDR also includes a procurement-specific provision establishing the temporary exclusion from public procurement processes as a minimum penalty for breaching its provisions. This article provides an overview of this new legal instrument and analyses the interplay between its rules and EU public procurement law. It also aims to characterise the new ‘deforestation exclusion’ in light of the regime on exclusion provided by Directive 2014/24/EU. Keywords: Deforestation Regulation (EUDR); Due Diligence; Sustainable Public Procurement; Exclusion Grounds

Discretionary Exclusion Grounds in Directive 2014/24/EU: journal article

A Missed Opportunity for Socially Responsible Public Procurement?

Marko Turudić, Melko Dragojević

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 27 - 39

Directive 2014/24/EU represents a significant step in the right direction for socially responsible public procurement (SRPP). It contains many articles referencing SRPP, of which the most important may be Article 18(2). One such article is Article 57(4)a, which contains discretionary exclusion grounds for violations of SRPP, leaving it up to Member States to decide whether they will make such grounds mandatory or leave them discretionary in national legislation. The aim of this paper is to establish how Directive 2014/24/EU’s approach has affected the use of SRPP exclusion grounds in Croatia, a Member State that decided to leave all of the discretionary exclusion grounds discretionary. This research was conducted by acquiring and analysing all available contract notices from 2022 to establish the percentage, value and other factors associated with SRPP use in public procurement procedures in Croatia. Keywords: socially responsible public procurement; discretionary exclusion grounds

Preventing Collusion Between Related Tenderers: the Specific Scope and Application of the Optional Ground for Exclusion · Case C-416/21 Landkreis Aichach-Friedberg journal article

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.

The Principle of Proportionality: journal article

A Balance of Aims in Public Contracts

Carina Risvig Hamer

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 3, Page 190 - 201

The article explores and analysis how the principle of proportionality has developed over the years and how the principle is applied in EU public procurement law. It explores different justifications for exclusions of undertakings such as social and environmental considerations, and how the principle of proportionality is used when balancing the different aims in public procurement. It is argued that the principle of proportionality ultimately ensures the procurement rules are flexible and contributes to safeguarding and developing the aims in public contracts. Keywords: proportionality; internal market; restrictions; exclusions grounds

The New German Competition Register for Public Procurement: journal article

Improvements for Public Contracting Entities and for Companies That Seek Self-Cleaning

Kai Hooghoff, Till Wiesner

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 2, Page 118 - 126

The Competition Register for Public Procurement has been put into operation at the Bundeskartellamt in Germany. The Competition Register centrally and electronically provides public contracting entities with comprehensive information on possible grounds for excluding an undertaking from a specific award procedure for having engaged in economic misconduct. A central access point to such information had previously not been available in Germany. The Competition Register closes this information gap and allows public contracting entities to make an informed decision when assessing whether grounds for exclusion exist. The Competition Register also opens up the possibility for undertakings to have their self-cleaning measures checked by a central body. If the Bundeskartellamt deems the requirements for self-cleaning to have been fulfilled, the undertaking’s entry is deleted from the register. This decision is binding on all contracting authorities in Germany, meaning the undertaking in question may then no longer be excluded from procurement procedures. The Bundeskartellamt has published Guidelines and a Practical Guide on self-cleaning and the procedure for the deletion of an entry. Keywords: Competition Register; self-cleaning; grounds for exclusion; compliance

The Requirement to Obtain Consent from the Relevant Authorities Constitutes a Contract Performance Condition • Case C-295/20 Sanresa journal article open-access

Ezgi Uysal

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 2, Page 127 - 131

Annotation on the Judgment of the Court of Justice of the European Union (Ninth Chamber) of 8 July 2021 in Case C-295/20 Sanresa UAB v Aplinkos apsaugos departamentas prie Aplinkos ministerijos In July 2021, the Court of Justice of the European Union delivered its judgment on Case C-295/20. The judgment established that the requirement to obtain authorisation for international shipment of waste under Regulation 1013/2006 is a contract performance condition therefore a contracting authority cannot exclude a tenderer due to the lack thereof at the time of tender submission.

Self-Cleaning in EU Public Procurement Law and Its Transposition into Polish Law journal article

Aldona Kowalczyk, Aleksandra Sołtysińska

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 181 - 192

The concept of self-cleaning was introduced into Polish and EU public procurement law relatively recently though, earlier, many EU Member States and international institutions saw the need to allow errant contractors to show contrition and goodwill by adopting voluntary remedial measures. Numerous doubts attach to specific remedial measures, timeframes and documents needed for a contractor’s recovery of good standing, and to contractors participating in several tenders simultaneously. This article seeks to both propose the imposition of some sort of order on the self-cleaning regime and respond to issues arising in everyday practice and jurisprudence. Keywords: public procurement, self-cleaning, exclusion grounds

EC Notice on How to Tackle Collusion in Public Procurement: journal article

A Step Forward or a Stall for Time?

Wojciech Hartung, Katarzyna Kuźma

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 110 - 124

This article analyses the European Commission (EC) Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground of 15 March 2021. The grounds and rules for the exclusion of contractors from participation in public procurement procedures adopted in the 2014 Directives raise many interpretation questions of the contracting authorities and contractors on the one hand and the bodies adjudicating on public procurement in EU Member States on the other hand. One of them is the ground referred to in Article 57(4)(d) of Directive 2014/24/EU. Its correct application in practice should contribute considerably to fighting collusive practices in public procurement. It seemed that the long-awaited EC guidance concerning the said exclusion ground will help answer questions of the market and thus contribute to increased legal certainty upon its application. However, this was not the case. Keywords: collusion; EC Notice; exclusion ground; sufficiently plausible indications; contracting authority

Exclusion of Certain Legal Services from Directive 2014/24/EU: the Italian case journal article

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

Tenderers May Be Excluded, If the Grounds for Exclusion Are Applicable to Their Subcontractors journal article

Annotation on the Judgment of the Court of Justice of the European Union (Second Chamber) of 30 January 2020 in Case C-395/18 Tim SpA - Direzione e coordinamento Vivendi SA v Consip SpA and Ministero dell'Economia e delle Finanze

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.

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