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The Good, the Bad and the Ugly: EU's Internal Market, Public Procurement Thresholds and Cross-Border Interest (with Editor's Note)

Public Contract Law Journal, Vol. 43, p.3-25, 2013

27 Pages Posted: 11 Aug 2013 Last revised: 13 May 2014

Pedro Telles

Swansea University

Steven L. Schooner

George Washington University - Law School

Date Written: August 1, 2013

Abstract

Public procurement regulation in the European Union is divided into two main tiers: above and below the EU financial thresholds. Above-thresholds, EU rules including the public procurement Directives are fully applicable but cover only 17.7% of the total spend in public procurement in the EU. Below, national laws rule, and EU Treaty principles are only applicable in case where there is cross-border interest. The Court of Justice of the European Union has tried for over 10 years to define what constitutes cross-border interest without being entirely able to solve the legal uncertainty created. Whereas scholars have so far looked only into improving the cross-border interest test or raising the thresholds, this paper argues that the legal and practical issues raised by this two-tier system could be solved by lowering the EU thresholds. In this scenario, the majority of all public contracts tendered in the European Union would be covered thus recognizing they are part of the present day Internal Market.

Keywords: public procurement, internal markat, EU, European Union, public contracts, thresholds, EU Treaty, Court of Justice, cross-border interest

Suggested Citation

Telles, Pedro and Schooner, Steven L., The Good, the Bad and the Ugly: EU's Internal Market, Public Procurement Thresholds and Cross-Border Interest (with Editor's Note) (August 1, 2013). Public Contract Law Journal, Vol. 43, p.3-25, 2013 . Available at SSRN: https://ssrn.com/abstract=2308503 or http://dx.doi.org/10.2139/ssrn.2308503

Pedro Telles (Contact Author)

Swansea University ( email )

Singleton Park
Singleton Park
Swansea, SA2 8PP
United Kingdom

HOME PAGE: http://telles.eu

Steven Schooner

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-3037 (Phone)
202-994-5614 (Fax)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=1740%20

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