Steen Treumer and Mario Comba
The Directive was implemented before the deadline for implementation. The Danish implementation is one of the most interesting in the EU, as the legislator has consistently pushed the boundaries of EU public procurement law. The legislator reformulated the provisions of the Directive, adopted several questionable interpretations, considered numerous issues in further detail than the Directive and engaged in overimplementation. The majority of the questionable interpretations can be found in the preparatory works to the Procurement Act. Preparatory works are an important legal source in the Danish legal system, as it is an exception that Danish courts and complaints boards disregard preparatory works. Nevertheless, this has happened in the procurement context and will likely happen again due to the abovementioned characteristics of the Danish implementation. The regulation of competitive procedure with negotiation, contract changes and a requirement for prior publication of the method of evaluation is also of European interest.
Transposition of the 2014 directives in Estonia was significantly delayed for a multitude of reasons, many only indirectly related to the actual duty to transpose. The Estonian Public Procurement Act traditionally incorporates all kinds of regulation: above and below the EU threshold, classical and utilities sectors, defence and security procurement, as well as remedies. A review of the entire national public procurement law was therefore undertaken, rightfully keeping the integrity of the regime, albeit hindering transposition through conflicting issues such as the level of national thresholds, the matter of retaining some simplified national procurement procedures and the desperate (failed) attempt to improve the regulation of contract awards financed by the European structural funds. Among the issues prescribed by the directives, regulations aimed at protecting subcontractors have been twisted into an intriguing domestic version, with questionable effect. The new law has been effective since September 2017.
Mari Ann Simovart and Kadri Härginen
This chapter provides a critical analysis of the national transposition of the 2014/24 Procurement Directive in Finland and describes the national legislative process in detail. Finnish national transposition was delayed and new rules entered into force in January 2017. The delay was partially due to a change of government during the legislative process, but also resulted from certain specific issues of national origin. The rules of the 2014/24 Directive were not questioned but disagreements mainly concerned the possibility to set stricter obligations for inhouse entities (lower turnover limits) and contracting authorities (obligation to consult users of long-term social and health services). In addition, this chapter looks at selected matters and legal provisions including but not limited to exclusion grounds, competitive procedure with negotiation, contract amendments and subcontracting.
French law diverges less from EU procurement law now than used to be the case. This is not only due to the well-known tendency to create detailed directives, but also because France now favours a more flexible approach, especially regarding negotiation, and because some French specificities have been extended at EU level (reserved contracts to workshops, innovation partnerships, division into lots). However, there remain some overimplementations and risks of mistransposition, which may be redressed when the Code de la commande publique is adopted (expected towards the end of 2018).
The chapter analyses the implementation of Directive 2014/23 into German law. In terms of speed, accuracy and complying with the requirements of the Directive, the German legislator did a very good job, not least since the legislator opted for copy-out transposition. Besides the accompanying necessary adjustments, the legislator has taken the opportunity to fundamentally reorganize the structure and the system of German public procurement law to make it more straightforward and easier to apply. However, the reform brought about only an evolution, not a revolution, of procurement law. Some structural principles remain unaffected (different systems for contracts above and under the thresholds; ‘cascade style’). Thus, the new procurement law is still very complex and causes an increase of bureaucratic burdens. Nonetheless, the reform has brought greater legal certainty and made a significant contribution to the not yet completed consolidation of a relatively young area of law.
Daniel Wolff and Martin Burgi
The 2014 public procurement and concession package was implemented in Italy by Decree 50/2016. However, the new Code for Public Procurements and Concessions cannot be considered as a complete document, because it requires the further approval and publication of 51 other implementing administrative acts in order to better regulate specific issues. Until these 51 acts have been approved, some important parts of Decree 50/16 remain not (completely) applicable and the old Code is still to be followed. In any case, it is already possible to outline the choices made by the Italian legislators in regard to the main options given by the Directive and to underline in the new Code some cases of goldplating, questionable implementation of EU dispositions and issues of implementation.
Mario Comba and Sara Richetto
This chapter focuses on specific issues connected with the transposition of the Public Procurement Directives, adopted in 2014, into the Polish legal order. It shows that the Polish legislator generally decided to reproduce the provisions of the Public Procurement Directives more or less word for word. The chapter describes how three selected topic areas, illustrating three stages of the public contract award procedure and its implementation—namely, the choice of participants, the procedure itself and the performance of public contracts—were transposed in Poland. It also shows how Poland exercised discretion in the transposition regarding a few options left open by the EU legislator. Finally, it points out that if Directive 2014/24/EU did not specify the specific legal rules or regulatory options to be applied for attaining the broader objectives set out by the Directive, Poland generally disregarded these objectives.
This chapter describes the status of the EU Procurement Directives‘ transposition into the national legal order of Romania, with an emphasis on the challenges encountered and some aspects which still need to be resolved in the near future. Romania transposed the Directives almost on time (there was a delay of a few weeks), through four separate laws, employing the copy-out approach. This has led to a complicated legal framework, with primary legislation being detailed in secondary, tertiary and soft law instruments, which sometimes contradict the primary legislation. Due to corruption and the fear of limited administrative capacity, a precautionary approach was maintained with regard to the discretion allowed contracting authorities. Numerous legal changes to the initial text of the law are expected by both practitioners and scholars in the near future in order to correct errors or to better specify concrete conditions for the application of the primary legislation.