I have just uploded on the University of Leicester School
of Law Research Paper SSRN series a new article on "The Continuing Relevance of the General Principles of EU Public Procurement Law after the Adoption of the 2014 Concessions Directive", which follows up on my criticism of the adoption of this regulatory instrument when it was first proposed [see A Sanchez-Graells, "What Need and Logic for a New Directive on Concessions, Particularly Regarding the Issue of their Economic Balance?" (2012) 2 European Public Private Partnership Law Review 94-104].
This new paper aims to offer some further reflections on the legal relevance of general principles of EU public procurement law after the adoption of the 2014 package of substantive Directives on public procurement. It focusses on the field of concession contracts because one of the explicit justifications for the adoption of Directive 2014/23 was to achieve a "uniform application of the principles of the TFEU across all Member States and the elimination of discrepancies in the understanding of those principles … at Union level in order to eliminate persisting distortions of the internal market".
The paper claims that Directive 2014/23 has failed on three grounds. Firstly, because it has not created any relevant substantive harmonisation of tender requirements for concessions that fall within its scope of application. Secondly, because it cannot limit the CJEU’s extension of obligations derived from general principles beyond its scope of application. And, thirdly, because it fails to acknowledge all general principles of EU public procurement law and, in particular, the principle of competition—creating a risk of inconsistency with the rest of the 2014 Procurement Package.
The full citation for the paper is A Sanchez-Graells, "The Continuing Relevance of the General
Principles of EU Public Procurement Law after the Adoption of the 2014
Concessions Directive" (March 20, 2015). University of Leicester School
of Law Research Paper No. 15-12. Available at SSRN: http://ssrn.com/abstract=2581683. I will be preseting it at the Public Procurement: Global Revolution VII conference in June 2015 at the University of Nottingham.