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De grundläggande rättsprinciperna vid direktupphandling : HFD 2018 ref. 60 och EU-rätten / The General Principles of Swedish Direct Awards : HFD 2018 ref. 60 and EU LawLignell, Elias January 2022 (has links)
This thesis examines the general principles in European Union (EU) public procurement law, as they apply to Swedish direct awards of low value, outside the scope of the EU procurement directives. A combination of Swedish and EU legal methodology is used to investigate two overarching themes. Firstly, the two different legal bases of the general principles, in the light of the Court of Justice of the EU’s definition of cross-border interest, as well as the Swedish implementation. Secondly, the central substantive consequences imposed by the principles on direct awards. The only national precedent on the subject, HFD 2018 ref. 60 of the Supreme Administrative Court, is both utilised and criticised against the backdrop of EU law to paint a picture of the principles’ inner workings in a direct award context. Pertaining to the first theme, an analysis of the applicability of EU primary law on direct awards is undertaken in order to distinguish the legal bases of the principles. If a contract is of certain cross-border interest, the general principles flow directly from EU law. In the absence of such an interest, the principles are exclusively based in Swedish law, which nationally extends the EU principles to all procurement (gold-plating). Overall, contracts valued below a quarter of the applicable EU directive threshold usually lack certain cross-border interest, unless there are concrete indications of the opposite. As a result, most direct awards fall outside the scope of EU law. An awareness of the legal bases of the principles is relevant to avoid breaches of EU primary law. It is argued that the Swedish gold-plated implementation of the general principles causes unnecessary uncertainty, and that separate national principles should be introduced outside the scope of EU primary law. As for the second theme, a thorough analysis concludes that the principles do not prohibit direct awards given without any exposure to competition, as long as the contracts are of low enough value. Direct awards can therefore be conducted through direct contact with a single supplier, in accordance with the legislative aims of the procedure. This may not be the case for social and other specific services of relatively high value. Nonetheless, the principles still affect direct awards, for instance in prohibiting flagrant cases of differential treatment without objective justification, based in arbitrary or corrupt decision-making. Unfortunately, these requirements are able to be circumvented due to the wide discretion given to procuring entities. On the other hand, if a direct award procedure is voluntarily advertised, the principles have greater practical significance. Still, the requirements in such cases are more lenient than in ordinary procurement procedures.
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