Damages in EU Public Procurement Law

244 Pages·2016·2.99 MB·English

by  Hanna Schebesta (auth.)

Studies in European Economic Law and Regulation 6
Hanna Schebesta
Damages
in EU Public
Procurement
Law
Studies in European Economic Law
and Regulation
Volume 6
Series editor
Kai Purnhagen
Law and Governance Group, Faculty of Law
Wageningen University, Erasmus University
Wageningen and Rotterdam , The Netherlands
The series shall focus on studies devoted to the analysis of European Economic
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More information about this series at http://www.springer.com/series/11710
Hanna Schebesta
Damages in EU Public
Procurement Law
Hanna Schebesta
Department of Law
European University Institute
Florence , Italy
Law & Governance Group
Wageningen University
Wageningen , The Netherlands
ISSN 2214-2037 ISSN 2214-2045 (electronic)
Studies in European Economic Law and Regulation
ISBN 978-3-319-23611-7 ISBN 978-3-319-23612-4 (eBook)
DOI 10.1007/978-3-319-23612-4
Library of Congress Control Number: 2015957380
Springer Cham Heidelberg New York Dordrecht London
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Meiner Mutter

Pref ace
The present book is a revised version of my dissertation that was defended at the
European University Institute (EUI, Florence, Italy) in September 2013. My dis-
sertation was a project that bridged the highly specifi c fi eld of procurement damages
with that of general EU law, leading ‘Towards an EU law of damages’. As a mono-
graph, it would have been overwhelming; I therefore decided to rework and shorten
the manuscript with a focus on public procurement for a specialised audience.
T he individual chapters were substantially rewritten and updated, taking into
account case law up to April 2015. Additionally, I have taken the legislative action
in the fi eld of competition law as an opportunity to put forward several recommen-
dations specifi cally geared at the European legislator for a revision of the public
procurement damage regime.
Although in many ways this book has outgrown the dissertation it is based on,
some acknowledgements are due to the same people. I am grateful to Prof. Hans-
Wolfgang Micklitz for his supervision and advice, which then and now provides
useful guidance time and again. I thank Prof. Giorgio Monti (EUI), Prof. Alexandra
(Sacha) Prechal (Court of Justice of the European Union) and Prof. Laurence
W. Gormley (University of Groningen and College of Europe) for having been
members of the examining board of my thesis and particularly for their very instruc-
tive reports. I have picked up many of the comments in the revisions. In addition, I
want to thank the two anonymous reviewers and Dr Kai Purnhagen, the editor of
this series, for their valuable feedback on the book manuscript.
For my research at the EUI, I received a DAAD grant. I am grateful to the German
government for funding PhD positions at this institution, which provides doctoral
students such as myself with an opportunity to research and work in a truly excep-
tional academic environment. I would also like to express my gratitude to those
persons who have made it possible for me to reach the EUI in the fi rst place, in
particular Prof. Hildegard Schneider (Maastricht University).
A bove all, I thank my mother for her unconditional support, my family at large,
and especially Thac and Hue. Some things do not change, and I feel privileged to
have met Dr Guilherme Vasconcelos Vilaça at a very early stage of the PhD and to
remain friends despite years and distance. I am grateful to Dr Jana Warkotsch for
vii
viii Preface
her companionship during my PhD time and beyond; to Elmira Khadzhibaeva,
Mina Andreeva, Dr Vicky Kosta and Dr Maren Frömel for their friendships; to my
‘sister’ Sarah Andres; and to my friends Maja Lethen, Anna Lytton, Dennis and
Nina Sievert and Natalie Chatterjee for old friendships. Also, my thanks go to John,
for his understanding and support in the often very busy times of manuscript
writing.
Florence, Italy Hanna Schebesta
Contents
1 Introduction ............................................................................................... 1
1.1 Problem Discovery ............................................................................. 1
1.1.1 What Does the Field Know? .................................................. 3
1.1.2 Contribution of the Book ....................................................... 5
1.2 Outline of the Argument ..................................................................... 7
1.2.1 Damages Claims in General EU Law
and Public Procurement Specifi cally (Part I) ......................... 7
1.2.2 Damages Awards in National Courts (Part II) ........................ 8
1.2.3 Transversal Issue-Based Discussion
of Damages (Part III) .................................................................... 8
1.2.4 Conclusions (Part IV) ............................................................. 9
Bibliography. ............................................................................................... 9
Part I The EU Perspective on Damages
2 The EU Public Procurement Policy Field ............................................... 13
2.1 The Early Development of Public Procurement Regulation .............. 13
2.1.1 Historic Developments. .......................................................... 14
2.2 EU Public Procurement Policy ........................................................... 16
2.2.1 Public Procurement Policy: Governance,
Competition Law, Budget Law, or Private Law? ................... 17
2.2.2 The Opening Up of Public Procurement Markets:
European and Plurilateral Efforts ........................................... 18
2.3 Enforcing Public Procurement Policy Through Damages .................. 20
2.3.1 Public and Private Enforcement of EU Public
Procurement Rules ................................................................. 21
2.3.2 Private Enforcement in the Remedies Directive ..................... 22
2.3.3 The Remedies Amendments
by Directive 2007/66 .............................................................. 25
ix