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The reform of the EU’s public procurement directives: a missed opportunity?

The reform of the EU’s public procurement directives: a missed opportunity?

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Published by N R Dewi Nurmayani
This Working Paper provides a critical analysis of the EU Commission’s proposals to modernise and simplify its rules on public procurement. The author of the paper, Eric Van den Abeele, looks at the political background and reasons behind the EU’s revision of its public procurement directives. The reform aims at making the rules simpler and more flexible, providing better access to the public procurement market by SME’s and fostering a better qualitative use of public procurement through the introduction of social and environmental criteria.

On all these accounts, the Commission’s proposal is mediocre and disappointing, argues the author of this working paper providing extensive arguments for his critique. His analysis shows that the proposed reforms do neither enhance the EU’s competitiveness nor promote sustainable development.
This Working Paper provides a critical analysis of the EU Commission’s proposals to modernise and simplify its rules on public procurement. The author of the paper, Eric Van den Abeele, looks at the political background and reasons behind the EU’s revision of its public procurement directives. The reform aims at making the rules simpler and more flexible, providing better access to the public procurement market by SME’s and fostering a better qualitative use of public procurement through the introduction of social and environmental criteria.

On all these accounts, the Commission’s proposal is mediocre and disappointing, argues the author of this working paper providing extensive arguments for his critique. His analysis shows that the proposed reforms do neither enhance the EU’s competitiveness nor promote sustainable development.

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Categories:Types, Research
Published by: N R Dewi Nurmayani on May 06, 2013
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05/14/2014

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As a reminder, a public contract is a contract for pecuniary interest between a
public authority, also known as the "contracting authority", and an economic
operator known as the "contractor". This contract is subject to particular rules

4. There are conficting views about liberalisation. While it has reduced prices in some sectors

such as air transport and telecommunications, there has been a relative increase in prices
for energy products. Generally speaking, there have been no particularly ambitious provi-

sions specifcally on the social and environmental dimensions.

5. This draft directive on public procurement rules overhauls the two existing directives

(2004/17/EC and 2004/18/EC) as it makes major changes to the legislation in force.
6. See the "Altmark II" or "Almunia" package adopted by the Commission on 20 December 2011

in particular including a Communication on the application of the European Union State
aid rules to compensation granted for the provision of services of general economic interest,

which is intended to clarify certain concepts; a Decision on the application of Article 106(2) of

the Treaty on the Functioning of the European Union to State aid in the form of public service
compensation granted to certain undertakings entrusted with the operation of services of
general economic interest; and a European Union framework for State aid in the form of

public service compensation which in Articles 39 to 43 makes it mandatory for Member
States to introduce incentives for the effcient provision of SGEIs of a high standard.

7. Commission procedures to examine State aid generally take several years, entailing risks

from the point of view of legal security and predictability for the frm concerned, and from
the point of view of long-term investment, quality of social benefts, jobs, etc.

Éric Van den Abeele

WP 2012.11

8

when the contracting authority wishing to have works carried out, purchase
goods or have a service provided uses public money; it must then act in the ge-
neral interest in a manner which is fully transparent and non-discriminatory.

A public contract is more than the simple purchase of goods or services, bearing
in mind in particular developments in the case-law of the Court of Justice of
the EU (CJEU) which make the award of public contracts subject to compliance
with the rules of the Treaty on the Functioning of the European Union (TFEU).

Within the European Union, this issue is governed by a hierarchy of rules.

Overall, it can be said that, below certain thresholds, national law applies al-
though the general rules of the EU Treaty nevertheless have to be respected
(equal treatment, transparency, non-discrimination, freedom to provide ser-
vices, etc.). Above these thresholds Community law applies to intra-Commu-
nity contracts and the Agreement on Government Procurement (GPA), drawn

up by the World Trade Organization (WTO), applies to extra-Community
contracts, when the enterprise is in one of the 42 States which have signed

the GPA.

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