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Public Procurement and the EU Competition Rules, 2nd Edition

Public Procurement and the EU Competition Rules, 2nd Edition

Author: Albert Sanchez Graells
Publisher: Hart Publishing
ISBN: 9781849466127

Previous Edition ISBN: 9781849460668
Published In: May 2015
Format: Hardback , 650 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents
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Public procurement and competition law are both important fields of EU law and policy, intimately intertwined in the creation of the internal market. Hitherto their close connection has been noted, but not closely examined. This work is the most comprehensive attempt to date to explain the many ways in which these fields, often considered independent of one another, interact and overlap in the creation of the internal market. This process of convergence between competition and public procurement law is particularly apparent in the 2014 Directives on public procurement, which consolidate the principle of competition in terms very close to those advanced by the author in the first edition. This second edition builds upon this approach and continues to ask how competition law principles inform and condition public procurement rules, and whether the latter (in their revised form) are adequate to ensure that competition is not distorted. The second edition also deepens the analysis of the market behaviour of the public buyer from a competition perspective.

Proceeding through a careful assessment of the general rules of competition and public procurement, the book constantly tests the efficacy of these rules against a standard of the proper functioning of undistorted competition in the market for public procurement. It also traces the increasing relevance of competition considerations in the case law of the Court of Justice of the European Union and sets out criteria and recommendations to continue influencing the development of EU Economic Law.

Part One Introduction

Introduction and Framework for Analysis

I. Introduction

II. General Approach to the Interrelationship between Competition and Public Procurement Law

III. Aim of the Study

IV. Structure of the Study and General Overview

V. Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law

VI. Normative Assumptions

VII. Delimitation of the Study: Exclusions and Limitations

Part Two Foundations and Principles: The Economic and Legal Basics of Public Procurement and Competition Law

An Economic Approach to Public Procurement and Competition

I. Introduction

II. Types of 'Public Procurement Markets'

III. Economic Dimensions of Public Procurement

IV. The Role of Public Authorities as Purchasing and Contracting Authorities

V. Public Procurement as a Market Failure: Difficulties in Recreating a Competitive Scenario and Competition- Restricting Effects 60

VI. Conclusions to this

Basics of Competition and Public Procurement Regulation

I. Introduction

II. Principles Common to Competition and Public Procurement Law as Two Sets of Economic Regulation

III. The Goal(s) of Competition Law

IV. Goals of Public Procurement

V. Conclusions to this Chapter: Common Goals of Competition Law and Public Procurement Conclusions to Part Two: Legal and Economic Normative Foundations of a More Competition-Oriented Public Procurement System

Part Three General Part: The Building Blocks of a Framework for the Competition Analysis of Public Procurement

EU Competition Law and Public Procurement: The Inability of EU Competition Rules to Rein in Anti-Competitive Public Procurement

I. Introduction

II. The Inability of Rules on the Grant of State Aid and Special or Exclusive Rights to Tackle Anti-Competitive Public Procurement

III. The Inapplicability of 'Core' EU Antitrust Rules to Public Procurement: A Jurisprudentially Created Gap in EU Competition Law

IV. The Insufficiency of State Action Doctrine to Capture Most of the Anti-Competitive Public Procurement Regulations and Practices

V. Preliminary Conclusions: The Insufficiency of Current Competition Institutions and Potential Improvements to Achieve Better Results

VI. A Revision of Current Doctrine to Achieve Better Results (1): A More Economic Approach to the Concept of 'Economic Activity' in the Public Procurement Field

VII. A Revision of Current Doctrine to Achieve Better Results (2): Setting the Proper Bounds to the State Action Doctrine

VIII. Conclusions to this

The Principle of Competition Embedded in the EU Public Procurement Directives

I. Introduction

II. The Competition Principle Embedded in the pre-2014 EU Public Procurement Directives

III. The Principle of Competition Consolidated in Article 18(1) of Directive 2014/24: A Critical Assessment of the Interpretative Difficulties it Creates

IV. Implications of the Competition Principle for the Shaping of Public Procurement Rules by Member States: The General Obligation to Develop a Pro-Competitive Public Procurement Framework

V. The Principle of Equal Treatment and the Principle of Competition Distinguished

VI. Conclusions to this Chapter Part Four Analysis of Competition Distortions Caused by Public Procurement

A Critical Assessment of the 2014 EU Public Procurement Directives and the Existing Case Law from a Competition Perspective: Preventing Competitive Distortions by the Public Buyer

I. Introduction

II. A Competition Appraisal of Potential Distortions Derived from Public Procurement Processes

III. Two Examples of Potential Distortions Derived from the Exercise of Public Entities' Market Power

IV. Conclusions to this Chapter

Complementary Proposals for the Development of a More Competition-Oriented Public Procurement Framework

I. Introduction

II. Complementary Proposals Aimed at Limiting Publicly Created Restraints of Competition

III. Complementary Proposals Aimed at Limiting Privately Created Restraints of Competition

IV. Complementary Measures Aimed, in General, at Strengthening the Relationships between Competition and Procurement Authorities V. Conclusions to this Chapter

Part V General Conclusions

Conclusions: Towards a More Competition-Oriented Procurement System References

Albert Sánchez Graells is a Senior Lecturer in Commercial Law at the University of Leicester.