Public Contract Law Journal

Law As a Tool to Build Cross-Border Markets: The Experience of the Court of Justice of the EU in Opening Up Government Contracts

by Christopher Vajda

Judge Christopher Vajda is a judge at the Court of Justice of the European Union. He would like to thank Veena Srirangam for her assistance in preparing this article. This article is based on a presentation at The George Washington University Law School on November 1, 2017. All opinions expressed herein are personal to the author.

Public procurement is a subject of huge practical and legal importance. The annual value of public procurement contracts in the European Union (EU) is estimated at €2 trillion, representing fourteen percent of the EU’s gross domestic product.1 From the legal perspective, there is detailed legislation both on substantive and procedural issues. There are now two relatively new directives in this area as well — Directives 2014/23 and 2014/24, which codify the Court of Justice for the European Union’s (CJEU) case law in some respects and develop the law in others.2 This is also an area with voluminous CJEU case law and even more in the national courts of the EU Member States — which never reaches the CJEU. Between 2012 and 2016, the CJEU determined a total of eighty-two cases on public procurement — with nineteen new cases coming before the CJEU in 2016 alone.3

This Article provides an overview of the development of EU public procurement law and considers some of the issues surrounding the application of EU law’s general principles as well as remedies available in public procurement litigation. This Article also briefly discusses the World Trade Organization (WTO) regime on public procurement.

Before looking at the detail of EU public procurement law, this Article will briefly describe the principal features of the EU legal order. For present purposes, EU law is found in four sources: treaties — currently the Treaty of the European Union (TEU)4 and the Treaty of the Functioning of the European Union (TFEU),5 the Charter of Fundamental Rights,6 legislation, and general principles.

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