Andrea Sundstrand (28th April-2nd May 2014)
Project title: Overriding reasons of public interest in public procurement
Andrea's research explores the possibilities in EU law to refer to over-riding reasons of public interest when conducting public procurement procedures, and to analyse whether the Swedish legislation and practice in this area is consistent with the legal framework of the European Union.
The EU public procurement legal framework is based on the principle of equal treatment in Article 18 TFEU and on its provisions on the free movement of goods, services, and capital in the European Union.
Comparisons with other Member States will be made to understand how these questions have been solved. The UK is one of the selected case studies and Andrea will examine the UK public procurement rules while in Nottingham as a PPRG visitor.
According to the case law of the European Court of Justice (CJEU) it is only possible to restrict these freedoms of movement if there is an explicit exclusion in EU law, or if there is an overriding reason of public interest. In the latter case, the Member State shall be able to demonstrate that the relevant measure is non-discriminatory, justified by overriding reasons of general interest, suitable for securing the attainment of the objective pursued and does not go beyond what is necessary to achieve that goal. Swedish contracting authorities, units and courts today have little or no knowledge of the application and the delimitation of the exemptions from public procurement. The project is important to clarify the boundaries of any discrepancies and determine in which cases it is possible in a public procurement procedure to refer to an overriding reason of public interest.
Andrea was also our visiting scholar in April 2010, where she researched public procurement outside the EU Directives, such as concessions, part B services and below thresholds procurement.
Her research included the questions on what procurements are excluded from the EU Directives, in what legislatory framework these excluded procurements would be regulated and what the obligations are for procurements regulated only by the EU Treaties. The research also includes examining whether Sweden has managed to regulate these excluded procurements properly.
During her stay at Nottingham, Andrea was looking further into the definition and meaning of the term "certain crossborder interest", stated by the EU Court in its jurisprudence. By stating that some procurements falling outside the EU legislatory framework may have a certain crossborder interest, the EU Court has implied that these procurements could be caught by the articles of the EU Treaties and the basic principles of EU law.