scholarly journals Transposition of the EU Public Procurement Directives 2014 in Austria

2018 ◽  
pp. 4-13
Author(s):  
Bernt Elsner ◽  
Ruth Bittner
Keyword(s):  
Public Procurement ◽  
Case Law ◽  
Legal Framework ◽  
National Parliaments ◽  
The Public ◽  
Service Contracts ◽  
New Public ◽  
Eu Directives ◽  
Historical Developments ◽  
The Eu

The EU public procurement directives 2014 further advance the European Commission’s ambitions to regulate most public procurement at the EU-wide level. The Directives already set out a fairly concrete legal framework for national parliaments regarding public procurement procedures for work, supply and service contracts above the EU-thresholds. The Austrian parliament decided to implement these directives mostly word for word, but at the same time tried to preserve most of the historical developments to the public procurement law that were specific to Austria. In addition to that, the Austrian legislature responded to recent ECJ case law that was established after the EU Directives were published. The new public procurement code creates legal certainty for both contracting authorities and contractors in several different aspects. However, the interpretation of some provisions will be subject to case law, especially regarding contractual cooperation between contracting authorities. Concerning contracts not fully regulated by the Directives – such as concessions as well as social and other specific services – the Austrian legislature opted not to regulate them further and leave some flexibility to the contracting authorities.

The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies

2012 ◽  
Vol 14 ◽  
pp. 1-47 ◽  
Author(s):  
Sue Arrowsmith
Keyword(s):  
Public Procurement ◽  
National Policy ◽  
Legal Framework ◽  
The Public ◽  
Public Market ◽  
Barriers To Access ◽  
Environmental Objectives ◽  
Clear Vision ◽  
The Eu ◽  
Do So

AbstractThere currently appears to be considerable confusion amongst regulators and stakeholders over the purpose of the EU’s directives on public procurement and lack of a clear vision of what the directives seek to achieve. Against this background this article has two objectives. First, it seeks to provide a framework for understanding the directives’ functions and their relationship with national policy. In this respect it identifies the ends and means that the directives do, or could, adopt and/or which have been ascribed to them, and considers the implications of each for national regulatory space. Secondly, for each of the ends and means it suggests a specific legal interpretation of its actual and potential role in the EU’s legal framework.It is argued that the directives seek to promote the internal market and that they seek to do so solely by three means—prohibiting discrimination, implementing transparency, and removing barriers to access. It rejects, on the other hand, certain broader conceptions of the directives, including that they promote a single market by standardising procedures; that they replicate in the public market the competitive process of the private market; and that they seek value for taxpayers’ money. It is argued that rejection of these broader functions has important implications for the scope of national regulatory space, both as regards the ‘commercial’ aspects of public procurement—notably ensuring value for money and an efficient procurement process—and as regards ‘horizontal’ policies in the sense of policies that promote social and environmental objectives through public procurement.

scholarly journals The Relationship Between Initial Tender and Mini-Competition: EU and Lithuanian Perspectives on Framework Agreements

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 45-61
Author(s):  
Marta Andhov ◽  
Deividas Soloveičik
Keyword(s):  
Public Procurement ◽  
Case Law ◽  
Legal Framework ◽  
Legal Regulation ◽  
Legal Doctrine ◽  
Related Case ◽  
Framework Agreement ◽  
The Public ◽  
Two Stages ◽  
The Relationship

The article conducts a comprehensive scholarly analysis of framework agreements – a public procurement technique often used across different European jurisdictions. Besides examining the general legal framework of the EU and Lithuanian law on framework agreements, the article also examines the newest EU case law. The authors analyse the relationship between the initial tender procedure establishing the framework agreement and the subsequent mini-competition that follows under the former to award the public contract. In contrast to the Lithuanian legal regulation and related case law, the authors argue that these two stages are interconnected and must be viewed as a unified part of the same procurement process in line with European legal doctrine. Finally, the article highlights the differences between framework agreements and public contracts.

scholarly journals The transposition of the 2014 EU Directives on public procurement by Portugal: woes and expectations

2018 ◽  
Vol 1 (1) ◽  
pp. 33-44
Author(s):  
Luís Valadares Tavares
Keyword(s):  
Public Administration ◽  
Environmental Sustainability ◽  
Public Procurement ◽  
Legal Framework ◽  
New Approach ◽  
Public Markets ◽  
The Public ◽  
Administration Culture ◽  
Eu Directives ◽  
Negative Impacts

The new EU Directives on Public Procurement are oriented to promote the application of the concept of strategic public procurement which has been subject to several communications and discussions promoted by the European Commission and European Parliament. This new approach to Public Procurement has deep implications in the legal framework adopted by each Member State as well as in the public administration culture and organization in order that the new objectives of promoting the qualification of markets, the increase of innovation, the respect by social cohesion and environmental sustainability and a better access to public markets by SME’s will be achieved aligned with the UE 2020 Agenda. In this paper, the process and the results of the transposition of this Directives by Portugal are studied not just in terms of the respect for the Directives rules but also considering its likely positive and negative impacts on Portuguese public markets which are also synthetically described herein.

scholarly journals Transposition of the 2014 European Directives on public procurement by Spain

2018 ◽  
Vol 1 (1) ◽  
pp. 24-32
Author(s):  
Jaime Pintos Santiago
Keyword(s):  
Public Procurement ◽  
Legal Framework ◽  
European Directives ◽  
Spanish Law ◽  
Eu Directives ◽  
Public Contracts ◽  
The Eu

The major changes introduced by the new Spanish Law 9/2017 transposing the EU Directives of 2014 to the Spanish legal framework are discussed in this paper as well as major challenges due to their new law. Special attention is given to the adoption of mandatory e-procurement, including e-tendering, to all public contracts.

scholarly journals Standard of Care and Liability of Public Procurement Officials: Blessing or Curse?

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Allison Megan Anthony
Keyword(s):  
Public Procurement ◽  
Cost Effective ◽  
Standard Of Care ◽  
Case Law ◽  
Public Officials ◽  
The Public ◽  
New Public ◽  
Legislative Amendments ◽  
Unlawful Conduct ◽  
Do So

Section 217 of the Constitution provides that organs of state, when contracting for goods or services, should do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. Therefore, public procurement officials acting on behalf of such organs of state should act in terms of these principles. When their conduct falls foul of section 217, it may be declared unlawful by a court of law. In the recent past, there have been countless reports of unexplained corruption, theft and fraud committed by public officials, especially in the public procurement sector. Consequently, the legislature, by enacting legislation (specifically the new Public Audit Amendment Act 5 of 2018), and the judiciary, by imposing cost orders, have started holding public procurement officials personally liable for unlawful conduct. This article examines the latest developments in this area of law, including case law and recent legislative amendments, and asks the question whether the standard of care and liability of public procurement officials has increased because of these developments.

scholarly journals Resilience in Times of Pandemic: Is the Public Procurement Legal Framework Fit for Purpose?

2020 ◽  
pp. 60-79
Author(s):  
Laura-Alexandra FARCA ◽  
Dacian C. DRAGOŞ
Keyword(s):  
Public Procurement ◽  
Legal Framework ◽  
Public Institutions ◽  
State Of Emergency ◽  
Health Crisis ◽  
The Rule Of Law ◽  
The Public ◽  
New Type ◽  
Fit For Purpose ◽  
Eu Directives

"This article aims to analyze whether the legislation enacted in the field of public procurement in Romania, based on the 2014 EU Directives, is effective in fostering resilience of the public institutions and indirectly of communities, and to provide a fit-for-purpose mechanism for dealing with the pandemic generated by the new type of coronavirus, Sars-CoV-2. The article discusses the necessity of new rules meant to promote swiftly purchases during the state of emergency. Undoubtedly, the pandemic generated crisis has raised some serious challenges to which public procurement regulations is in principle properly equipped to deal with: urgent need for supplies, works and services, but also unemployment or protection of other disadvantaged categories of people. We argue that resorting to specific tools (negotiated procedures, framework-agreements, centralized procurement, sustainable and social procurement, reserved contracts) when carrying out swift interventions generated by the pandemic would have been more suitable during this health crisis or even for preventing the effects of this pandemic. Instead, the attention of the legislator has been concentrated only on (unnecessarily) exempting the swift purchases of medical equipment from the rule of law. "

scholarly journals Free movement of workers in the EU and occupational pensions

2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Free Movement ◽  
The European Union ◽  
Occupational Pensions ◽  
Minimum Standards ◽  
Court Of Justice ◽  
Free Movement Of Workers ◽  
The Eu ◽  
Cross National

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

The law applicable to third-party effects of assignment and the conflict rules for insolvency according to EU law

2019 ◽  
Vol 24 (4) ◽  
pp. 664-684
Author(s):  
Christian Heinze ◽  
Cara Warmuth
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Third Party ◽  
Legislative Process ◽  
Insolvency Law ◽  
Ongoing Debate ◽  
Good Opportunity ◽  
Insolvency Regulation ◽  
The Law ◽  
The Eu

Abstract In March 2018, the European Commission issued its proposal for a regulation on the law applicable to third-party effects of assignments of claims, aiming to put an end to the ongoing debate on this issue and the legal uncertainty associated with it. On the basis of the Commission’s decision in favour of the application of the law of the assignor’s habitual residence, this article discusses the consequences of the Proposal under European Union (EU) insolvency law. For that purpose, the coherence of the Proposal with the Insolvency Regulation will be examined, first in general and then in more detail. The analysis comes to the result that the Commission’s objective of aligning the Proposal with the legal framework of the Insolvency Regulation has predominantly been well achieved. The authors point out remaining minor inaccuracies that may be clarified in the further legislative process or by later case law. It is concluded that, from the perspective of international insolvency law, the proposed uniform conflict-of-laws rule at the EU level offers a good opportunity to promote legal certainty with regard to cross-border assignments of claims in the future.

scholarly journals In the name of the public: Representatives of collective and wider interest of the public in administrative matters in Serbia

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 504-531
Author(s):  
Jelena Jerinić
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Legal Framework ◽  
Interested Party ◽  
The Public ◽  
Administrative Procedure ◽  
Active Approach ◽  
Legal Provisions ◽  
Direct Indication ◽  
Administrative Procedures

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

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