EU Public Procurement Law and Self-Organisation : A Nexus of Tensions and Reconciliations / Willem A. Janssen.

Format:

Book

Author/Creator:

Janssen, Willem, 1988- author.

Language:

English

Subjects (All):

Government purchasing--Law and legislation--European Union countries.

Government purchasing.

International and municipal law--European Union countries.

International and municipal law.

Public contracts.

Public contracts--European Union countries.

Physical Description:

1 online resource (358 pages)

Edition:

First edition.

Place of Publication:

The Hague, The Netherlands : Eleven International Publishing, [2018]

Summary:

This book offers a comprehensive analysis of the relationship between EU public procurement law and the Member States' public authorities. It scrutinizes various aspects such as competences, self-supply, cooperation, exclusive rights, and make-or-buy decisions within the legal framework. Through qualitative and comparative research, it examines exemptions from EU public procurement law, referencing the 2014 directives, Court of Justice of the European Union case law, and Dutch court interpretations. The book aims to provide academic scholars, legislators, and practitioners with a deeper understanding of EU public procurement law's scope, while also guiding public authorities on service provision using their resources and informing third parties about legal obligations. Generated by AI.

Contents:

Intro

Table of contents

List of abbreviations

CHAPTER 1 INTRODUCTION

1. The nexus: EU public procurement law &amp

self-organisation

2. Methodology &amp

research question

2.1. General methodology and main research question

2.1.1. Tensions &amp

reconciliations

2.2. Three subsequent analyses

2.2.1. Allocation of responsibilities and competences

2.2.2. Make-or-buy decision

2.2.3. Service provision by public authorities

2.3. Specific methodology

3. Sources

4. Terminology

5. Structure

CHAPTER 2 UNDERSTANDING THE NEXUS: EU PUBLIC PROCUREMENT LAW

1. Achieving societal value through public procurement

2. Regulating public procurement in the EU

2.1. Free movement in the context of the internal market

2.2. A new batch of Directives on public procurement in 2014

2.3. The EU Commission's efforts in soft law

2.4. The CJEU's case law to provide interpretative clarity

2.5. Creating a level playing field through legal principles

3. The scope of EU public procurement law

3.1. Ratio personae: the concept of contracting authority

3.1.1. The traditional authorities: the State, regional or local authorities

3.1.2. Understanding the criteria of 'bodies governed by public law'

3.1.2.1. Established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character

3.1.2.2. Legal personality

3.1.2.3. Close dependency

3.1.2.3.1. Financial dependency

3.1.2.3.2. Management supervisory dependency

3.1.2.3.3. Composition of the administrative, managerial or administrative board

3.2. Ratio materiae: the concepts of public contract and concession contract

3.2.1. Understanding the criteria of a public contract

3.2.1.1. An agreement between one or more economic operators and one or more contracting authorities.

3.2.1.1.1. Bilateralism

3.2.1.1.2. Concordance of wills

3.2.1.1.3. The new criterion of selectivity

3.2.1.1.4. Duty to perform and enforceability

3.2.1.2. A relationship for pecuniary interest

3.2.2. Understanding the criteria of a concession contract

3.2.2.1. The right to perform and financial payment

3.2.2.2. Transferring risk to the concessionaire

4. Exemptions from the scope of EU public procurement law

4.1. The need for strict interpretation of exemptions

4.2. No general exemption for the public sphere

4.3. The burden of proof rests on those who invoke the exemption

5. Concluding remarks

CHAPTER 3 UNDERSTANDING THE NEXUS: SELF-ORGANISATION OF THE EU MEMBER STATES

1. Competences: self-organisation vs. achieving an internal market for public procurement

2. Excluding the allocation of responsibilities and competences from EU public procurement law

3. The influence of the European Charter of Local Self-Government on self-organisation in the EU

4. Exempting institutionalised cooperation from EU public procurement law

5. Excluding self-supply and the make-or-buy decision from EU public procurement law

6. Exempting non-institutionalised cooperation from EU public procurement law

7. Article 4(2) TEU: self-organisation elevated to primary law

7.1. The recognition of regional and local self-government

7.2. The interpretation of the right to self-organisation

7.3. Confirmation of the interpretation of Article 4(2) TEU in the CJEU's case law

8. Possibilities for self-organisation in Directive 2014/24/EU

9. Concluding remarks

CHAPTER 4 ALLOCATION OF RESPONSIBILITIES AND COMPETENCES &amp

EU PUBLIC PROCUREMENT LAW

1. The allocation of responsibilities and competences

2. Inclusion in Directive 2014/24/EU and the CJEU's interpretation.

3. The criteria of an allocation of responsibilities and competences

3.1. The object of an allocation

3.2. The method of an allocation

3.3. The need for a genuine allocation

3.3.1. Tension &amp

reconciliation: operational autonomy or a contractual relationship?

3.3.2. Tension &amp

reconciliation: financial autonomy or a contractual relationship?

4. Concluding remarks

CHAPTER 5 SELF-SUPPLY &amp

1. Self-supply's ratio materiae

2. Tension &amp

reconciliation: self-supply's ratio personae

2.1. The (un)dividable State: Is the State one or multiple contracting authorities?

2.2. The misunderstanding of a grammatical interpretation of the State

2.2.1. The State ? dividable

2.2.2. The State = dividable

2.3. The merits of an interpretation of the State based on Beentjes and Teckal

2.3.1. A legal distinction = a legal personality?

2.3.2. Reconciliation = a functional interpretation of the State

3. Concluding remarks

CHAPTER 6 INSTITUTIONALISED COOPERATION &amp

1. The institutionalised exemption

2. Three preliminary comments

3. Different types of institutionalised cooperation

4. Cooperation between a single contracting authority and a formally independent entity

4.1. Formal independence

4.1.1. Tension &amp

reconciliation: Must a formally independent entity be a contracting authority?

4.1.2. Tension &amp

reconciliation: A preference for legal personalities under public law?

4.2. Operational dependence

4.2.1. First criterion: individual control

4.2.2. Second criterion: essential part of the activities

4.2.2.1. Quantitative or qualitative assessment?

4.2.2.2. Tension &amp

reconciliation: the broad codification of the activities criterion.

4.3. The individual control and activities criterion before the Dutch Courts

4.3.1. Consistent application of the CJEU's case law in Connexion/RET and Wigo4it

5. Cooperation between multiple contracting authorities and a formally independent entity

5.1. Accommodating self-organisation further: joint-control criterion

5.2. Activities criterion

5.3. Tension &amp

reconciliation: the application of the joint control and activities criteria before the Dutch Courts

5.3.1. Tension &amp

reconciliation in AVR/Westland: an additional criterion?

5.3.2. Improvement of the application of the CJEU's criteria in Fryslân Miljeu

6. Cooperation with a direct private participation

6.1. Accommodating self-organisation: direct private participation

6.2. Direct private participation in the formally independent entity: the 'per se ban' of the CJEU in Stadt Halle

6.3. Direct private participation and social solidarity: more room in the future?

6.4. Future direct private participation

6.5. Indirect private participation in the controlling contracting authority

6.6. Tension &amp

reconciliation: the EU legislature accepts direct private participation required by law

6.6.1. In line with the 'objectives' argument...

6.6.2. ...but the competition argument of Stadt Halle: problematic?

6.6.3. Required by law: re-opening the floodgates?

6.7. The absence of direct private participation: a means to prove control?

7. Cooperation in a holding structure

7.1. The CJEU: control dismissed in a holding structure

7.2. EU legislature accommodates self-organisation further: holding-structures an accepted expansion

8. Cooperation in a single contracting authority's chain of authority

8.1. EU legislature accommodates self-organisation for reversed and horizontal awards

8.2. Tension &amp.

reconciliation: limitations of these exemptions and direct private participation

CHAPTER 7 NON-INSTITUTIONALISED COOPERATION &amp

1. The non-institutionalised exemption

3. The criteria of the non-institutionalised exemption

3.1. The organization of the cooperation

3.1.1. The cooperative partners

3.1.2. The type of cooperation

3.1.3. The substance and objective of the cooperation

3.2. The considerations governing the cooperation

3.2.1. Tension &amp

reconciliation: the financial conditions of the cooperation

3.2.2. Tension &amp

reconciliation: direct private participation

3.3. The commercial freedom of the cooperation

reconciliation: the considerations governing the cooperation

CHAPTER 8 COOPERATION BASED ON AN EXCLUSIVE RIGHT &amp

1. The exclusive right exemption

2. The criteria of the exclusive right exemption

2.1. The need for a public service contract

2.1.1. Tension &amp

reconciliation: no justification for this limitation

2.2. The recipient contracting authority

2.2.1. Tension &amp

reconciliation: direct private participation in a contracting authority

2.3. The definition of an exclusive right

2.4. The exclusive right must be pursuant to laws, regulations or published administrative provisions

2.5. The crux of this exemption: 'which is compatible with the Treaty'

2.5.1. First requirement - the exclusive right itself as an obstacle to trade

2.5.2. Tension &amp

reconciliation: the forgotten second requirement - the selection of the exclusive provider

2.5.2.1. The CJEU accommodates self-organisation through the Betfair exemptions

2.5.2.1.1. Public or private operator.

2.5.2.1.2. Direct supervision and strict control.

Notes:

Includes bibliographical references.

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Part of the metadata in this record was created by AI, based on the text of the resource.

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ISBN:

9789462749078

9462749078

OCLC:

1126215694