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
Date Written: August 1, 2013
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
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