Public procurement and the EU competition rules / Albert Sánchez Graells.
2011
KJE6456 .G72 2011 (Map It)
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Details
Author
Title
Public procurement and the EU competition rules / Albert Sánchez Graells.
Published
Oxford ; Portland, Or. : Hart Pub., 2011.
Call Number
KJE6456 .G72 2011
ISBN
9781849460668 (cloth)
1849460663 (cloth)
1849460663 (cloth)
Description
xxii, 457 pages ; 25 cm
System Control No.
(OCoLC)607975193
Summary
"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 new 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. In this process of convergence between competition and public procurement law , the need for this joint study is clearly apparent. As such the book asks whether competition law principles inform or condition public procurement rules, and whether they are adequate to ensure that competition is not distorted in markets where public procurement is particularly significant. The book moves away from the classical focus of public procurement on the activities of private actors, developing instead an analytical framework for the appraisal of the market behaviour of the public buyer from a competition perspective. The analysis is both legal and economic. Proceeding through a careful assessment of the general rules of competition and public procurement, the book constantly tests the efficacy of the rules in competition and public procurement against a standard of the proper functioning of undistorted competition in the market for public procurement"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 399-453) and index.
Record Appears in
Variant Title
Public procurement and the Europenan Union competition rules
Table of Contents
Foreword / Francisco Marcos
v
Table of Cases and Opinions
xiii
Table of Legislation
xxi
pt. I
Introduction
1
1.
Introduction and Framework for Analysis
3
I.
Introduction
3
II.
General Approach to the Interrelationship between Competition and Public Procurement Law
12
III.
Aim of the Study
13
IV.
Structure of the Study and General Overview
14
V.
Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law
18
VI.
Normative Assumptions
23
VII.
Delimitation of the Study: Exclusions and Limitations
25
pt. II
Foundations and Principles. The Economic and Legal Basics of Public Procurement and Competition Law
31
2.
An Economic Approach to Public Procurement and Competition
33
I.
Introduction
33
II.
Types of `Public Procurement Markets'
35
III.
Economic Dimensions of Public Procurement
47
IV.
The Role of Public Authorities as Purchasing and Contracting Authorities
52
V.
Public Procurement as a Market Failure: Difficulties in Recreating a Competitive Scenario and Competition-Restricting Effects
56
VI.
Conclusions to this Chapter
72
3.
Basics of Competition and Public Procurement Regulation
75
I.
Introduction
75
II.
Common Principles to Competition and Public Procurement Law as Two Sets of Economic Regulation
76
III.
The Goal(s) of Competition Law
83
IV.
Goals of Public Procurement
97
V.
Conclusions to this Chapter: Common Goals of Competition Law and Public Procurement
110
Conclusions to Part II
Legal and Economic Normative Foundations of a More Competition-Oriented Public Procurement System
111
pt. III
General Part---The Building Blocks of a Framework for the Competition Analysis of Public Procurement
113
4.
EU Competition Law and Public Procurement---The Inability of EU Competition Rules to Rein in Anti-Competitive Public Procurement
115
I.
Introduction
115
II.
The Inability of Rules on the Grant of State Aid and Special or Exclusive Rights to Tackle Anti-Competitive Public Procurement
117
III.
The Inapplicability of `Core' EU Antitrust Rules to Public Procurement: A Jurisprudentially-Created Gap in EU Competition Law
128
IV.
The Insufficiency of State Action Doctrine to Capture Most of the Anti-Competitive Public Procurement Regulations and Practices
136
V.
Preliminary Conclusions: The Insufficiency of Current Competition Institutions and Potential Improvements to Achieve Better Results
146
VI.
A Revision of Current Doctrine to Achieve Better Results (I): A More Economic Approach to the Concept of `Economic Activity' in the Public Procurement Field
150
VII.
A Revision of Current Doctrine to Achieve Better Results (II): Setting the Proper Bounds to the State Action Doctrine
166
VIII.
Conclusions to this Chapter
186
5.
The Principle of Competition Embedded in the EU Public Procurement Directives
189
I.
Introduction
189
II.
The Competition Principle Embedded in the EU Public Procurement Directives
190
III.
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
200
IV.
The Principle of Equal Treatment and the Principle of Competition Distinguished
212
V.
Conclusions to this Chapter
220
Conclusions to Part III
Sketching a Legal Framework to Discipline the Market Behaviour of the Public Buyer and to Guarantee Undistorted Competition in Public Procurement
221
pt. IV
Analysis of Competition Distortions Caused by Public Procurement
225
6.
A Critical Assessment of Current EU Public Procurement Directives and their Case Law from a Competition Perspective---Preventing Competitive Distortions by the Public Buyer
227
I.
Introduction
227
II.
A Competition Appraisal of Potential Distortions Derived from Public Procurement Processes
229
III.
Two Examples of Potential Distortions Derived From the Exercise of Public Entities' Market Power
359
IV.
Conclusions to this Chapter
364
7.
Complementary Proposals for the Development of a More Competition-Oriented Public Procurement Framework
371
I.
Introduction
371
II.
Complementary Proposals Aimed at Limiting Publicly-Created Restraints of Competition
372
III.
Complementary Proposals Aimed at Limiting Privately-Created Restraints of Competition
380
IV.
Complementary Measures Aimed, in General, at Strengthening the Relationships between Competition and Procurement Authorities
385
V.
Conclusions to this Chapter
389
pt. V
General Conclusions
391
8.
Conclusions of this Study on Public Procurement and the EU Competition Rules---Towards a More Competition-Oriented Procurement System
393
References
399
Index
455