Discretion in EU Public Procurement Law

✍ Scribed by Sanja Bogojević; Xavier Groussot; Jörgen Hettne (editors)

• Publisher: Hart Publishing
• Year: 2018
• Tongue: English
• Leaves: 321
• Series: Studies of the Oxford Institute of European and Comparative Law
• Category: Library

✦ Synopsis

The EU public procurement regime has recently undergone an overhaul and now allows Member States and their contracting authorities to pursue strategic goals via public procurement, including environmental and social objectives. The extent to which such interests may be accommodated in the procurement process is ultimately determined by the broader legal context in which the EU public procurement regime exists, which raises pressing questions regarding the scope and limits of Member States’ discretion. This volume scrutinises these new legal acts – particularly Directive 2014/24/EU – focusing on discretion and engaging with questions central to the public procurement regime against the EU legal backdrop, including internal market law and environment law, as well as law beyond the EU.
Volume 26: Studies of the Oxford Institute of European and Comparative Law

✦ Table of Contents

Preface
Contents
List of Contributors
Table of Cases
Table of Legislation
Part I. Introduction
1. The 'Age of Discretion': Understanding the Scope and Limits of Discretion in EU Public Procurement Law
I. Introduction
II. Conceptualising Discretion in EU Law
III. Judicial Discretion and Proportionality
IV. Points of Reflection
V. Discretion as Discussed in this Volume
Part II: Discretion in EU Internal Market Laws
2. EU Law on Public Procurement: Internal Market Law Made Better
I. Introduction
II. The Law of the Internal Market - Structuring the Exercise of Regulatory Discretion at National Level
III. The Deficiencies in the Law and Practice of the Internal Market
IV. Public Procurement
V. Conclusion
3. The Drivers and Boundaries of Discretion in the Award of Public Contracts
I. Introduction
II. The Drivers of Public Procurement
III. Discretion in Public Procurement Regulation
IV. The Boundaries of Discretion in Public Procurement
V. Conclusions
4. Some Reflections on the 'Artificial Narrowing of Competition' as a Check on Executive Discretion in Public Procurement
I. Introduction
II. Case Law on Green, Social and Labour Responsible Procurement: Underpinning Competition-Based Constraints
III. Substantive Balancing Test Between 'Responsible Procurement' and 'Artificial Narrowing of Competition for Public Contracts
IV. Procedural Traceability Test: Documentary Evidence of Executive Discretionary Decisions
V. Conclusion
5. The Obligation of Transparency in EU Public Procurement Law
I. Introduction
II. The Rise of the Obligation(s) of Transparency
III. The Obligation of Transparency and Proportionality
IV. The Obligation of Transparency and the Principles of Equivalence and Effectiveness
V. Conclusion
Part III: Discretion in Pursuing Strategic Goals under the EU Public Procurement Regime
6. Contracting Authorities and Strategic Goals of Public Procurement - A Relationship Defined by Discretion?
I. Introduction
II. Strategic Public Procurement
III. The Legitimacy of Pursuing Strategic Procurement at the EU Level
IV. Limiting or Expanding Discretion in the Area of Strategic Public Procurement?
V. Limits to Discretion: Can We Ignore the Strategic Goals?
VI. Conclusions
7. Public Procurement and European Standards: Fair Competition or Limits to Discretion?
I. Introduction
II. The Position of Technical Standards in EU Internal Market Law
III. The Position of Technical Standards in EU Public Procurement Law
IV. Is the Prominent Position of Standards in Public Procurement Problematic?
V. A New Role for Standards in the Public Procurement Directive?
VI. A Way Out – A New Role for Standardisation in the EU?
VII. Conclusions
8. Mapping Public Procurement and Environmental Law Intersections in Discretionary Space
I. Introduction
II. Internal Market Laws and Environmental Considerations: A Brief Overview of a Symbiotic Relationship
III. EU Public Procurement Law: A Regime Complex
IV. Environmental Law and EU Public Procurement Law: Mapping Intersections
V. Conclusion
Part IV:
Discretion in Public Procurement
Regimes Beyond the EU
9. Discretion, Divergence, Paradox: Public and Private Supply Chain Standards on Human Rights
I. Introduction
II. The Human Rights Lens: Dignity Defines Discretion (within Limits)
III. The Public Procurement Lens: Competition before Discretion
IV. Divergence: The Growing Gap between Public and Private Supply Chain Standards
V. Conclusion
10. EU and US Discretion in Public Procurement Law: The Role of Eco-Labels and Life-Cycle Costing
I. Introduction
II. US Public Procurement and the Environment
III. EU Public Procurement and Environmental Interests
IV. The Future of Green Procurement: Life-cycle Costing and Eco-labels
V. Conclusion
11. Regulating Procurement by European Research Infrastructure Consortia (ERICs) and the Exemption for International Organisations
I. Introduction
II. Procurement by European Research Infrastructure Consortia
III. The Exemption for International Organisations and Implications for ERICs
IV. Conclusion
Part V:
Looking Ahead
12: Looking Ahead: A 'New Age' of Proportionality?
I. Introduction
II. Administrative Discretion in Derogating from EU Public Procurement Law
III. Discretion and Implementation of EU Public Procurement Legislation
IV. Looking Ahead
Index