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Public Procurement and the EU Competition Rules

By: Albert Sánchez Graells
Media of Public Procurement and the EU Competition Rules
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Published: 21-05-2015
Format: Hardback
Edition: 2nd
Extent: 624
ISBN: 9781849466127
Imprint: Hart Publishing
Series: Hart Studies in Competition Law
Dimensions: 244 x 169 mm
RRP: £100.00
 

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About Public Procurement and the EU Competition Rules

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.

Table Of Contents

Part One
Introduction
1 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
2 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 Chapter
3 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
4 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 Chapter
5 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
6 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
7 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
8 Conclusions: Towards a More Competition-Oriented Procurement System References

Reviews

“On the whole, this second edition of Public Procurement and the EU Competition Rules constitutes an excellent and vastly updated piece of scholarship, shedding light and raising controversy in the field of procurement law, which will constitute a work of reference and criticism in the years to come.” –  Ignacio Herrera Anchustegui, European Competition Law Review

“...a vitally important book on procurement law.” –  Christopher R. Yukins and Lieutenant Colonel Jose A. Cora,

“...provides a fresh perspective [and] remains a powerfully argued piece of scholarship which is certain to influence the academic debates further.” –  John Townsend, Modern Law Review

“Graell's book provides an extensive analysis of the variety of ways that public procurement closely interacts with competition laws and policies...Graell's book offers a comprehensive insight into EU public procurement and competition laws and policies...the book is researched, argued and presented to a very high standard...Throughout the book, Graell's analysis is focused and disciplined; the economic and legal building blocks to his argument are set out meticulously. Thus Graells puts forward an essential and original dimension to the public procurement debate that is simultaneously theoretical and practical.” –  Kamala Dawar, Legal Issues of Economic Integration

“...a daring legal policy analysis founded on economic theory and resulting in a number of recommendations for amendment of the public procurement rules/practices...the book is very well written and the reference list is impressive (which in itself makes the book worth reading). I warmly recommend every scholar, with some knowledge of economic theory, interested in the fields of competition and public procurement law to indulge in this book: it is a very welcome contribution to the debate on the interaction between public procurement law and competition law.” –  Grith Skovgaard Ølykke, Common Market Law Review

“... the question of the relationship between public procurement law and competition law of the European Union is not one to have excessively mobilized researchers and doctrine ... It therefore seems that the work of Mr. Sánchez Graells [...] will help fill a gap...At a time when the Commission is embarking on a process of modernization of the EU policy on public procurement [...] Albert Sánchez Graells' book will help and contribute to this reflection.” –  Stéphane Rodrigues, Concurrences

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