The Institutionalised and Non-Institutionalised Exemptions from EU Public Procurement Law: Towards a More Coherent Approach?

19 Pages Posted: 22 Jan 2015

See all articles by Willem A. Janssen

Willem A. Janssen

Utrecht University - School of Law

Date Written: December 12, 2014

Abstract

From a EU public procurement law perspective, contracting authorities have a discretionary power to decide upon who is allowed and best suited to provide public services to the public. When public authorities deem the in-house performance of a service to be the most suitable, the Court of Justice of the EU has allowed these authorities to rely on the institutionalised and non-institutionalised exemptions, which exempt a possible duty to contract out a public contract. The first part of this contribution discusses the recent codification of these exemptions in Article 12 Directive 2014/24/EU on public procurement. It concludes that this codification creates some legal certainty, but it mostly expands the scope of these exemptions from public procurement law. The second part of this contribution proposes a more coherent approach for these exemptions by discussing the challenges of regulating and enforcing the pre-procurement phase (the make-or-buy decision) in which a public authority decides to favour the internal or external performance of a service. It concludes by providing legal perspectives to regulate and enforce this decision-making phase.

Keywords: public procurement law, institutionalised cooperation, non-institutionalised cooperation, in-house exemptions, regulation and enforcement

Suggested Citation

Janssen, Willem A., The Institutionalised and Non-Institutionalised Exemptions from EU Public Procurement Law: Towards a More Coherent Approach? (December 12, 2014). Utrecht Law Review, Vol. 10, No. 5, p. 168-186, December 2014. Available at SSRN: https://ssrn.com/abstract=2552599

Willem A. Janssen (Contact Author)

Utrecht University - School of Law ( email )

Utrecht
Utrecht
Netherlands

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