EU/EEA law by Roberto Caranta
The present chapter deals with the matter of remedies for infringements of public procurement law... more The present chapter deals with the matter of remedies for infringements of public procurement law and it focuses mainly on the European Economic Area. Opening-up the widest possible undistorted competition in all the Member States of the EEA is the main rationale of the European public procurement regime. A new directive meant to enhance the procedural protection was necessary, since the undistorted competition objective could not be attained in the absence of harmonized effective remedies on which a tenderer can rely in order to ensure the enforcement of the individual rights guaranteed by the substantial provisions. The novelties brought by the new directive in the spirit of swiftness and effectiveness are primarily exposed hereby, but also the relevant case-law relying on the old remedies directives has been revisited in a structured manner.
The new remedies directive adopted in 2007 had to be transposed into the national legislation of the EU member states before December 2009. The EFTA-EEA members adopted it later in 2011 and their transposition deadline was November 2012. Consequently, the new case law discussed in the present chapter refers to disputes still falling within the temporal scope of the old regime of remedies for violations of procurement law. During the period between adoption and transposition of a new directive the Member States must nevertheless act in conformity with their obligations derived from it and the principle of sincere cooperation. This type of anticipatory obligations is specific for the case of coordination of law via EU directives. I endeavour in this chapter to enlighten the matter of obligations incumbent on the Member States before the end of the transposition date.
The transparency has a substantive dimension referring to the obligation to advertise the opportunity of a new public procurement offer, but also a procedural dimension, since in the absence of apposite advertising the exercise of the right to effective judicial protection would be impeded too. The most important change brought by the new directive is the remedy of ineffectiveness of a contract that has been concluded in violation of the principle of transparency, which is a corollary of the principle of non-discrimination. Furthermore, the available means for preventing the ineffectiveness of an illegally awarded contract have been considered in the present chapter.
In this context the character of binding law acquired by Article 47 of the Charter after the coming into force of the Treaty of Lisbon in December 2009 must be observed as well. The principles enshrined in the Charter and implemented by Member States in their legislative and administrative acts are judicially recognisable in the interpretation and ruling on the validity of such acts. The requirements of swiftness and effectiveness are analysed in their interrelation and the importance of clarity and completeness of the information provided to the potential tenderers in the view of the transparency principle is recognized. Moreover, clarity must characterize also the implementing provisions of national law in order to ensure an effective judicial protection of the rights deriving from the supranational procurement law. These aspects are all examined in the final part of the chapter.
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Papers by Roberto Caranta
Common Market Law Review, 2018
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Ruch Prawniczy, Ekonomiczny i Socjologiczny
This article delineates how a shift in the priorities of EU laws can change public procurement’s ... more This article delineates how a shift in the priorities of EU laws can change public procurement’s current centre of gravity from its fixation on the lowest price to that of a more balanced consideration of different societal goals. There is an acknowledgement that public money can meaningfully contribute to support for social justice and the fight against climate change and environmental degradation. To this end, the present EU legal framework, together with more advanced experiences in Italy and in a few other EU Member States, are illustrated before an analysis of the many initiatives currently under consideration by the EU law makers as per the European Green Deal and the Sustainable Products Initiative. The article then highlights the need to reconsider the theory of public procurement law and practice as well as the current EU legislative framework for public procurement (and concessions).
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Common Market Law Review, 1998
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Common Market Law Review, 2017
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European procurement & public private partnership law review, 2016
In Spezzino the Court of Justice green lighted direct award of social service contracts to notfor... more In Spezzino the Court of Justice green lighted direct award of social service contracts to notfor-profit organisations. It is submitted that in allowing direct award the judgment is unnecessarily stretching the thin EU internal market law, since social considerations would have been met by simply setting off contracts for those specific market operators. The judgment also imposes a line of reasoning which is inconsistent with the one followed in the meantime in Directive 2014/24/EU and will have an impact on the implementation of the new directive making it more difficult.
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Common Market Law Review, 2008
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SSRN Electronic Journal, 2020
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SSRN Electronic Journal, 2019
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ERA Forum
The 2014 procurement and concessions directives have clarified the possibilities that exist for r... more The 2014 procurement and concessions directives have clarified the possibilities that exist for referring to social considerations in public procurement (and socially responsible public procurement). Still, these rules fall, in the main, well short of being mandatory and instead leave wide margins to Member States and their contracting authorities which do not wish to consider social and human rights concerns when buying. Furthermore, concerns about ensuring the widest competition possible may limit reference to social considerations. Recently proposed reforms may however go a long way towards more sustainable production and procurement.
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EU/EEA law by Roberto Caranta
The new remedies directive adopted in 2007 had to be transposed into the national legislation of the EU member states before December 2009. The EFTA-EEA members adopted it later in 2011 and their transposition deadline was November 2012. Consequently, the new case law discussed in the present chapter refers to disputes still falling within the temporal scope of the old regime of remedies for violations of procurement law. During the period between adoption and transposition of a new directive the Member States must nevertheless act in conformity with their obligations derived from it and the principle of sincere cooperation. This type of anticipatory obligations is specific for the case of coordination of law via EU directives. I endeavour in this chapter to enlighten the matter of obligations incumbent on the Member States before the end of the transposition date.
The transparency has a substantive dimension referring to the obligation to advertise the opportunity of a new public procurement offer, but also a procedural dimension, since in the absence of apposite advertising the exercise of the right to effective judicial protection would be impeded too. The most important change brought by the new directive is the remedy of ineffectiveness of a contract that has been concluded in violation of the principle of transparency, which is a corollary of the principle of non-discrimination. Furthermore, the available means for preventing the ineffectiveness of an illegally awarded contract have been considered in the present chapter.
In this context the character of binding law acquired by Article 47 of the Charter after the coming into force of the Treaty of Lisbon in December 2009 must be observed as well. The principles enshrined in the Charter and implemented by Member States in their legislative and administrative acts are judicially recognisable in the interpretation and ruling on the validity of such acts. The requirements of swiftness and effectiveness are analysed in their interrelation and the importance of clarity and completeness of the information provided to the potential tenderers in the view of the transparency principle is recognized. Moreover, clarity must characterize also the implementing provisions of national law in order to ensure an effective judicial protection of the rights deriving from the supranational procurement law. These aspects are all examined in the final part of the chapter.
Papers by Roberto Caranta
The new remedies directive adopted in 2007 had to be transposed into the national legislation of the EU member states before December 2009. The EFTA-EEA members adopted it later in 2011 and their transposition deadline was November 2012. Consequently, the new case law discussed in the present chapter refers to disputes still falling within the temporal scope of the old regime of remedies for violations of procurement law. During the period between adoption and transposition of a new directive the Member States must nevertheless act in conformity with their obligations derived from it and the principle of sincere cooperation. This type of anticipatory obligations is specific for the case of coordination of law via EU directives. I endeavour in this chapter to enlighten the matter of obligations incumbent on the Member States before the end of the transposition date.
The transparency has a substantive dimension referring to the obligation to advertise the opportunity of a new public procurement offer, but also a procedural dimension, since in the absence of apposite advertising the exercise of the right to effective judicial protection would be impeded too. The most important change brought by the new directive is the remedy of ineffectiveness of a contract that has been concluded in violation of the principle of transparency, which is a corollary of the principle of non-discrimination. Furthermore, the available means for preventing the ineffectiveness of an illegally awarded contract have been considered in the present chapter.
In this context the character of binding law acquired by Article 47 of the Charter after the coming into force of the Treaty of Lisbon in December 2009 must be observed as well. The principles enshrined in the Charter and implemented by Member States in their legislative and administrative acts are judicially recognisable in the interpretation and ruling on the validity of such acts. The requirements of swiftness and effectiveness are analysed in their interrelation and the importance of clarity and completeness of the information provided to the potential tenderers in the view of the transparency principle is recognized. Moreover, clarity must characterize also the implementing provisions of national law in order to ensure an effective judicial protection of the rights deriving from the supranational procurement law. These aspects are all examined in the final part of the chapter.