European Papers (Nov 2019)
Antitrust and Coopservice: Procurement Aggregation Is a Serious Thing (Adjudicating Too)
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 809-821 | European Forum Insight of 17 November 2019 | (Table of Contents) I. Introduction. - II. The principle of transparency in public procurement. - II.1. Transparency before the award of contracts. - II.2. Ex post requirements stemming from transparency. - III. Framework agreements. - IV. The case in the national stage. - IV.1. The contract concluded by Garda and its extension to Valcamonica. - IV.2. The first-instance Judgment. - IV.3. The appeal before Consiglio di Stato and the referral to the Court of Justice. - V. First slip of the Court of Justice: the (inexistent) defective transposition of the Directive. - VI. Admissibility of the preliminary questions: Is it really a framework, despite it lasts nine years? Equivocal conceptions and an unnecessary reprimand from the Court. - VII. The Directive applicable ratione temporis. - VIII. Can a contracting authority sign a framework on behalf of itself and other authorities? - IX. Should the quantity that may be required by the potential users of the agreement be determined? - IX.1. Seven arguments for quantification. - IX.2. Two arguments for express quantification. - X. Conclusions. | (Abstract) Antritrust and Coopservice (judgment of 19 December 2018, case C-216/17) is a peculiar product of the Court of Justice. It is one of a kind in aggregate procurement, a subfield of public procurement that has remained virtually untouched by the Court. A number of very helpful and reasonable directions can be drawn from this judgment with respect to the duration and quantification of framework agreements as well as the identification of the authorities entitled to use them in the case of framework agreements concluded jointly by several authorities. At the same time, it is not a model of adjudication, incurring in some inaccuracies, obvious mistakes, and even unkindness to the referring national court. This surely makes it more enjoyable to read and comment. The present Insight shows the slips of the Court, while highlighting the main directions that can be extracted vis-à-vis the operation of framework agreements and joint contracts.
Keywords
