Avbrutna upphandlingar : Ansvar i gränslandet mellan privat och offentlig rätt

Sammanfattning: The thesis addresses a practical problem that has recently emerged on the Swedish public procurement law agenda; the fact that a considerable number of initiated tender procedures are cancelled by the contracting authority. During the last decade, the number of cancelled tenders has increased yearly and in 2017 over 13 percent of the initiated procedures governed by the EU public procurement regulation ended in cancellation. Yet, there is a lacuna in the legal research addressing tender cancellations and the various legal questions that arise in this context. The legal uncertainty that inevitably follows has been described as problematic, mainly due to increased transaction costs for tenderers but also in the light of coherence and foreseeability as an independent legal value.Departing from the uncertain state of law in this field, the overarching aim of the thesis is to analyse (i) how EU-law, and national supplementary law, limit the contracting authority’s discretion to cancel a tender procedure that falls within the domains of substantive EU public procurement law; as well as (ii) what types of remedies that are available to tenderers in cases of unlawful cancellations, and particularly if the cancellation decision can lead to liability for pure economic loss for the contracting authority. The analysis of these research questions interplays with a theoretical account of the historical development of Swedish public procurement regulation, and the implementation of the public procurement directives, to further the understanding as to why such a large number of tender procedures are cancelled by the contracting authority.Based on a traditional legal dogmatic approach, the thesis builds a theoretical framework for analysing the tenderers’ right to damages due to unlawful cancellation decisions. This includes an analysis of EU law requirements on damages claims for violations of EU public procurement rules. The current state of the law is exposed through an examination of public procurement legislation and damages claims in front of the CJEU, with regard to both general EU law and public procurement law. Further, the thesis analyses to what extent EU primary law sources limit the contracting authority’s discretion to cancel a tender procedure, and conducts an in-depth analysis of the national legal notion that the contracting authority’s cancellation decision must be based on objective grounds (the objectivity criterion). The remedies available to tenderers in cases of unlawful cancellation decisions are also analysed in further depth.The de lege lata analysis in the thesis is supplemented by an empirical case law study that aims at furthering the understanding as to why a considerable number of tender procedures are cancelled by the contracting authority.Inspired by de Sousa Santos’ and Tuori’s theory of inter-legality the thesis concludes by arguing that the contracting authority’s discretion to cancel a tender procedure ought to be limited by a plurality of legal sources from different areas of the traditional legal dichotomies such as national/transnational- and public/private-law.