Offentlig upphandling - primärrättens reglering av offentliga kontrakt
Sammanfattning: The objective of this thesis is EU primary legislation on public procurement. The award of public contracts below the thresholds, for B-services and for service concessions are excluded from the EU public procurement directives. They are however still subject to the rules of the Treaty on the Functioning of the European Union (TFEU) on the fundamental freedoms and the general principles of law, if they have a certain cross-border interest. Exactly what impact the rules and general principles of EU primary law has on the procurement of public contracts has so far been relatively unexplored, to the detriment of contracting authorities, entities and suppliers. The aim of the thesis has therefore been to determine the legal framework for the award of public contracts in primary law. In order to determine when the award of a contract is covered by primary law, the study examines the definitions of the three types of contracts and the concept of a specific cross-border interest. The possibilities to use the exceptions from the fundamental freedoms stated in the TFEU is also examined, together with the conditions under which these derogations can apply to the award of public contracts. The study also examines the possibility of the provisions of the EU procurement directives being applicable to the award of contracts in primary law. Having established the legal basis regulating the award of public contracts in primary law, the study analyzes its impact on different stages of the award procedure. It analyzes the application of the principles of equal treatment, non-discrimination, transparency, proportionality and equal treatment on the award procedure. The different parts of the award process that were selected for further analysis, are those considered to have the most impact on the fundamental rights of individuals. Finally, the study also examines the extent to which primary law provisions on remedies are available for the award of public contracts in primary law.
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