How Does the Substantial Modification of a Public Contract Affect its Legal Regime?

(2015) 24(3) Public Procurement Law Review, pp. 90 - 105

16 Pages Posted: 14 Jul 2015

See all articles by Jan Brodec

Jan Brodec

Charles University in Prague - Law Faculty

Václav Janeček

University of Bristol Law School; University of Oxford - Faculty of Law

Date Written: May 13, 2015

Abstract

This article outlines the fundamental consequences for the legal regime of public contracts which result from the substantial modifications of such contracts within the meaning of EU law. The authors conclude that an EU law-compliant understanding of the term “substantial modification to public contracts” may result, in some national legal systems, in the “privative novation” of the original contract, i.e. in its complete discharge and replacement with a new contract. However, this may be associated with a number of negative implications impairing the principle of legal certainty, thereby indirectly affecting the efficient functioning of the EU’s internal market. This conclusion appears to be contrary to the objectives pursued by the doctrine of indirect effect of EU law. The authors show some viable solutions to this problem, both from the position of contracting authorities and courts, and from the perspective of the member states in the forthcoming implementation of the new EU Public Procurement Directives.

Keywords: Applicable law; EU law; Indirect effect; Novation; Public contracts; Variation

Suggested Citation

Brodec, Jan and Janeček, Václav, How Does the Substantial Modification of a Public Contract Affect its Legal Regime? (May 13, 2015). (2015) 24(3) Public Procurement Law Review, pp. 90 - 105 , Available at SSRN: https://ssrn.com/abstract=2630052

Jan Brodec

Charles University in Prague - Law Faculty ( email )

Celetná 13
Praha 1, 116 36
Czech Republic

Václav Janeček (Contact Author)

University of Bristol Law School ( email )

University of Bristol
Senate House, Tyndall Avenue
Bristol, BS8 ITH
United Kingdom

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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