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Reformation or Deformation of the EU Public Procurement Rules

Edited by Grith Skovgaard Ølykke, PhD, Department of Economics, Copenhagen Business School, Denmark and Albert Sanchez-Graells, PhD (Eur), Law School, University of Bristol, UK
Using an innovative ‘law and political science’ methodology, this timely book carries out a critical assessment of the reform of the EU public procurement rules. It provides a rich account of the policy directions and the spaces for national regulatory decisions in the transposition of the 2014 Public Procurement Package, as well as areas of uncertainty and indications on how to interpret the rules in order to make them operational in practice.
Extent: 448 pp
Hardback Price: $170.00 Web: $153.00
Publication Date: 2016
ISBN: 978 1 78536 180 7
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  • Law - Academic
  • European Law
  • Politics and Public Policy
  • European Politics and Policy
  • Public Policy
Using an innovative ‘law and political science’ methodology, this timely book carries out a critical assessment of the reform of the EU public procurement rules. It provides a rich account of the policy directions and the spaces for national regulatory decisions in the transposition of the 2014 Public Procurement Package, as well as areas of uncertainty and indications on how to interpret the rules in order to make them operational in practice.

Most EU law research focuses on the content of rules and the impact of case law on their interpretation and application. It rarely discusses how the CJEU’s case law influences the creation of new rules, or the way EU law-makers enact them – issues which, conversely, are a staple for political scientists. By blending both approaches this book finds that political science provides a useful framework to describe the law-making process and shows that the influence of the CJEU was significant. Though the specific case studies identify many reforms, the ultimate assessment is that EU public procurement law was deformed.

Offering a clear contribution to the emerging scholarship on ‘flexible’ EU law-making, this book’s novel methodology will appeal to scholars and students of both law and political science. Law- and policy-makers as well as legal practitioners will also find its practical approach compelling.
‘Public procurement matters a lot in political and economic terms. This was clear during the legislative process leading to the 2014 reform. The contributions collected in this book offer a timely and clever account of the implications of the increasing politicisation of EU public procurement law whilst at the same time assessing possible developments of the CJEU case law based on both precedents and the reform. The book commends itself to different readers, those studying how EU law is made and those in practice trying to make sense of a reform which has much deformed public procurement law as we knew it.’
– Roberto Caranta, University of Turin, Italy

‘Reformation or Deformation of the EU Public Procurement Rules reveals an innovative and fresh approach to the functioning of the European Union public procurement framework and focuses on the need to reform the practice and application of the relevant complex and often contradicting rules. The book consists of an edited collection of essays which provide an in-depth critical assessment of the public procurement framework. The editors have produced an excellent interdisciplinary contribution to the academic literature of public procurement which will enrich discourse, research and policy-making in European integration.’
– Christopher Bovis, University of Hull, UK
Contributors: D.K. Allerkamp, I.H. Anchustegui, M. Andrecka, E. Aspey, T. Bruyninckx, R. Craven, K. Dawar, S. de Mars, P. Ferk, P.C. Gomes, C.R. Hamer, G.S. Ølykke, C.F. Petersen, A. Sanchez-Graells, M. Skalova, J. Wolswinkel














Contents:

PART I: INTRODUCTION AND ANALYTICAL FRAMEWORK
Introduction
Grith Skovgaard Ølykke and Albert Sanchez-Graells

1. The EU Legislative Process. An Introduction from a Political Science Perspective
Doreen Allerkamp

PART II: REFORMS INTRODUCED BY THE COMMISSION
2. The Evolution of EU Public Procurement Rules and its Interface with WTO: SME Promotion and Policy Space
Kamala Dawar and Monika Skalova

3. A Deformed Principle of Competition? – The Subjective Drafting of Article 18(1) of Directive 2014/24
Albert Sanchez-Graells

4. E-Procurement between EU Objectives and the Implementation Procedures in the Member States—Article 22(1) of the 2014 Directive
Petra Ferk

5. Division into Lots and Demand Aggregation – Extremes Looking for the Correct Balance?
Ignacio Herrera Anchustegui

6. The Provision on Abnormally Low Tenders: A Safeguard for Fair Competition?
Grith Skovgaard Ølykke

7. A Lost Proposal in the 2014 Public Procurement Package: Is there any Life for the Proposed Public Procurement Oversight Bodies?
Pedro Cerqueira Gomes

PART III: REFORMS INTRODUCED BY THE COUNCIL
8. The Provision on Services of General Economic Interest in the 2014 Directive – Pure Reiteration of the Obvious?
Cecilie Fanøe Petersen and Grith Skovgaard Ølykke

9. Clarification or Missed Opportunity? The Provision on Framework Agreements in the 2014 Directive
Marta Andrecka

10. Requesting Additional Information – Increase of Flexibility and Competition?
Carina Risvig Hamer

11. Exclusion and Self-Cleaning in Article 57: Discretion at the Expense of Clarity and Trade?
Sylvia de Mars

12. Modification of Contracts during their Term: Principle or Exception? – A View from the Perspective of Negative Externalities
Tim Bruyninckx

PART IV:REFORMS INTRODUCED BY THE PARLIAMENT OR RESULTING FROM A EUROPEAN CITIZENS’ INITIATIVE
13. Subcontracting Matters: Articles 43 and 71 of the 2014 Directive
Richard Craven

14. The Magic of Five in the Duration of Concessions: Refining Corollaries in the Concessions Directive
Johan Wolswinkel

15. Public Goods, Special Rights and Competitive Markets: Right2Water and the Utilities Procurement Regime
Eleanor Aspey

PART V CONCLUSIONS
16. Under the Political Science Magnifying Glass: Reformation or Deformation of the EU Public Procurement Rules in 2014?
Albert Sanchez-Graells and Grith Skovgaard Ølykke

Index