The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. T... more The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. The core of the concern is that different member states have absent or conflicting rules with regards to concessions, causing legal uncertainty and obstacles to trade. Concessions are an important tool for delegating public functions to private sector players and thus, prima facie, deal with relationships of significant public interest. Any lack of clarity may cause serious problems to private as well as public interests. Unclear formulation of the legal nature of the tendered contract may constitute a violation of the general principles of procurement, including equal treatment.4 A failure to differentiate between public and private law concessions may implicate both the validity of the contract award and the rights of parties in the course of performing the contract.. This article addresses the dual national regulation of concessions, and seeks to identify the critical effects of such a...
European Procurement & Public Private Partnership Law Review, 2016
On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for... more On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for the same reason: to prevent abuse of the fair competition requirement that governs the award of public contracts. A public contract modification must either be consistent with the competition that led to awarding the contract in the first place or alternatively, follow a proper new award procedure. Still, while the underlying rationale of the two systems is the same, differences can appear in details. The article looks at the EU and the US public (government) contract laws with regard to contract modification, and aims to establish if the case law accumulated in the US could serve as a reference when applying the new rules of contract modification in the EU.
Any substantial modification of a public contract needs to be carried out via a new award procedu... more Any substantial modification of a public contract needs to be carried out via a new award procedure, and failure to conduct that procedure can lead to ineffectiveness of the relevant contract. However, ineffectiveness of an unlawfully modified public contract can be accompanied by the wider legal implications and fundamental contradictions that this article is intended to ‘map’. To this end, the article firstly analyses questions related to establishing locus standi of third parties in public-contract modification disputes, using US government contract law as a reference point. Secondly, the scope of and collateral implications following from a case of contract ineffectiveness are examined.
National private law systems of European Union member states have different approaches with respe... more National private law systems of European Union member states have different approaches with respect to freely allowing or restricting the concurrence of avoidance for mistake and termination of contract. For instance in Germany*1, upon sale of a defective thing, the priority of applying a contractual legal remedy applies, and termination is either excluded or signifi cantly restricted, even though a case of mistake per se would actually exist. The Austrian and Swiss civil codes, however, allow free concurrence of such claims; in Spain and Italy, juridical practice has recognised the right of one party — the buyer — to choose the most suitable remedy.*2 There are no provisions in the Estonian Law of Obligations Act*3 (LOA) or the General Part of the Civil Code Act*4 (GPCCA) that would prevent the entitled party from using the most suitable remedy if both termination and avoidance are simultaneously available. Confl icting viewpoints have, however, been expressed on this matter in Est...
The General Part of the Civil Code Act*1 (GPCCA) that entered into force in Estonia on 1 July 200... more The General Part of the Civil Code Act*1 (GPCCA) that entered into force in Estonia on 1 July 2002 refl ects positions of modern European contract theory. Inter alia, the regulation of transactions as provided in the GPCCA contains the main sets of substantive elements for rescission of transactions, including rescission on the grounds of mistake (§ 92) and fraud (§ 94). The Principles of International Commercial Contracts*2 (PICC), prepared by the UNIDROIT Institute, the Principles of European Contract Law*3 (PECL), prepared by the Commission on European Contract Law acting under the leadership of Professor Ole Lando of the Copenhagen Business School, and the Dutch Civil Code (Burgerlijk Wetboek*4, NBW) may be cited as the sources of the respective provisions.*5 The general elements of mistake and fraud in the GPCCA are highly similar — both mistake and fraud defi ned in the GPCCA may consist in the disclosure of inaccurate circumstances or the non-disclosure of circumstances which...
This article reflects on some of the controversial issues related to implementation of 2014 publi... more This article reflects on some of the controversial issues related to implementation of 2014 public procurement directives, looking at the Estonian public procurement law in the light of the recent developments in the case law of the Court of Justice of the EU (hereinafter CJEU). In particular, we look at obstacles to timely transposition of the 2014 directives, including problematic gold-plating of some aspects of public procurement law by the national legislator.
In recent years, the topic of electronic public procurement has been in the centre of attention, ... more In recent years, the topic of electronic public procurement has been in the centre of attention, mostly in the light of the duty to transfer to fully electronic procurement procedures introduced under the 2014 public procurement directives. However, as several Member States are still reported to show insufficient progress in this area, estimation of the possibilities as well as the challenges associated with different systems of e-procurement is an equally logical step. The Estonian model of eprocurement might hopefully serve as one of possible examples.
Estonia has been moving towards a fully electronic public procurement environment since the year 2001, with 92 % of procurement procedures conducted electronically in 2016. The Article gives a short overview of Estonian electronic procurement system, with attention to legal issues that have been associated with e-procurement. We submit that while single steps in electronic communication in public procurement do not constitute a jump to a new level, the fully electronic procurement as required pursuant to the 2014 directives can be associated with the added quality expected to support the strive for more cross-border competition, transparency and nondiscrimination. Further, resorting to e-procurement as a system itself is a way of supporting innovation that can be viewed as a “cornerstone” of EU public procurement policy.
Establishing the review system in the public procurement, the remedies directives have been in fo... more Establishing the review system in the public procurement, the remedies directives have been in force since 1989 and 1992 respectively, and were subject to review for the last time in 2007. Meanwhile, the substantial EU law on public and utilities procurement, besides being subject to constant development through the EU case law, has undergone extensive reforms by way of introducing new directives first in 2004 and then recently in 2014. In addition to these legal changes, the public procurement situation is undergoing modernisation in the way of digitalisation. However, only some of the developments have found their way into the provisions of the remedies system. With these circumstances in mind, procurement experts have regarded the possibility of an upcoming review of the Remedies Directives as a probability. Still, in 2017 the European Commission's Report albeit somewhat disappointingly reached the conclusion that there was neither major nor urgent need to amend the Remedies Directives.
In the Article, I look at some of the issues that in my mind have a near-fundamental significance and call for either a review or some clarification of certain issues of the remedies directives currently in force. In addition to some long-standing issues such as the regulation of damages and the rules of disclosure, new gaps between the material law and the review system surfaced with the implementation of the 2014 directives.
I also submit that the decision to not update the review system can be regarded as a lost opportunity to promote modernisation and digitalization of the procurement system. Related to the move to e-procurement, some issues of review procedures - even though not necessarily in conflict with the current remedies system – would benefit from analysis already now in order to better facilitate innovation and modernisation within the EU procurement law system. These examples demonstrate the need to consider review or supplementation of the remedies directives.
VKE-de oluline roll majanduses teeb vajalikuks hankereeglite kujundamise selliselt, et taolised e... more VKE-de oluline roll majanduses teeb vajalikuks hankereeglite kujundamise selliselt, et taolised ettevõtjad oleks hanketurule enam kaasatud. Ühe sellise uuendusena näevad 2014. aastal vastu võetud direktiivides 2014/24/EL ja 2014/25/EL ette võimaluse sätestada riigisiseselt hankelepingu täitmisel osalenud alltöövõtjatele hankija poolt otsemaksete tegemise regulatsioon. Hankedirektiivide ülevõtmiseks 2017 jõustunud Eesti riigihangete seadus (RHS) on aga läinud alltöövõtjate kaitse reeglistiku osas hankedirektiividest erinevat teed. Autorid vaatlevad artiklis Eesti seadusandja kehtestatud lahenduse õiguslikku külge: kas hankedirektiivides ettenähtud otsemaksete alternatiivina kujundatud, RHS § 122 lõikes 9 sätestatud maksete peatamise regulatsioon on kooskõlas riigihankeõiguse üldpõhimõtete ja hankedirektiivides viidatud alltöövõtjate kaitse eesmärgiga ning kas sellist alternatiivset regulatsiooni on Eesti õiguse kontekstis võimalik kohaselt ja tõhusalt rakendada.
Üks esimesi ladinakeelseid sententse, mis ülikooli õigusteaduskonnas õppides meelde tuleb jätta,... more Üks esimesi ladinakeelseid sententse, mis ülikooli õigusteaduskonnas õppides meelde tuleb jätta, on "lex specialis derogat legi generali". Praktikas ei pruugi selle printsiibi kohaldamine alati selge ja arusaadav olla. Artikkel käsitleb näiteid üld- ja erinormi kohaldamise kohta 1. septembril 2017 kehtima hakanud riigihangete seaduse puhul. Analüüsime mõningaid printsipiaalseid õiguslikke küsimusi, mis tekivad riigihangete seaduse tõlgendamisel ja kohaldamisel koostoimes järgmiste avaliku õiguse valdkonna seadustega: haldusmenetluse seadus (HMS), avaliku teabe seadus (AvTS), halduskoostöö seadus (HKTS) ning perioodi 2014–2020 struktuuritoetuse seadus (STS).
On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for... more On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for the same reason: to prevent abuse of the fair competition requirement that governs the award of public contracts. A public contract modification must either be consistent with the competition that led to awarding the contract in the first place or alternatively, follow a proper new award procedure. Still, while the underlying rationale of the two systems is the same, differences can appear in details. The article looks at the EU and the US public (government) contract laws with regard to contract modification, and aims to establish if the case law accumulated in the US could serve as a reference when applying the new rules of contract modification in the EU.
The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. T... more The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. The core of the concern is that different member states have absent or conflicting rules with regards to concessions, causing legal uncertainty and obstacles to trade. Concessions are an important tool for delegating public functions to private sector players and thus, prima facie, deal with relationships of significant public interest. Any lack of clarity may cause serious problems to private as well as public interests. Unclear formulation of the legal nature of the tendered contract may constitute a violation of the general principles of procurement, including equal treatment.4 A failure to differentiate between public and private law concessions may implicate both the validity of the contract award and the rights of parties in the course of performing the contract.. This article addresses the dual national regulation of concessions, and seeks to identify the critical effects of such a...
European Procurement & Public Private Partnership Law Review, 2016
On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for... more On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for the same reason: to prevent abuse of the fair competition requirement that governs the award of public contracts. A public contract modification must either be consistent with the competition that led to awarding the contract in the first place or alternatively, follow a proper new award procedure. Still, while the underlying rationale of the two systems is the same, differences can appear in details. The article looks at the EU and the US public (government) contract laws with regard to contract modification, and aims to establish if the case law accumulated in the US could serve as a reference when applying the new rules of contract modification in the EU.
Any substantial modification of a public contract needs to be carried out via a new award procedu... more Any substantial modification of a public contract needs to be carried out via a new award procedure, and failure to conduct that procedure can lead to ineffectiveness of the relevant contract. However, ineffectiveness of an unlawfully modified public contract can be accompanied by the wider legal implications and fundamental contradictions that this article is intended to ‘map’. To this end, the article firstly analyses questions related to establishing locus standi of third parties in public-contract modification disputes, using US government contract law as a reference point. Secondly, the scope of and collateral implications following from a case of contract ineffectiveness are examined.
National private law systems of European Union member states have different approaches with respe... more National private law systems of European Union member states have different approaches with respect to freely allowing or restricting the concurrence of avoidance for mistake and termination of contract. For instance in Germany*1, upon sale of a defective thing, the priority of applying a contractual legal remedy applies, and termination is either excluded or signifi cantly restricted, even though a case of mistake per se would actually exist. The Austrian and Swiss civil codes, however, allow free concurrence of such claims; in Spain and Italy, juridical practice has recognised the right of one party — the buyer — to choose the most suitable remedy.*2 There are no provisions in the Estonian Law of Obligations Act*3 (LOA) or the General Part of the Civil Code Act*4 (GPCCA) that would prevent the entitled party from using the most suitable remedy if both termination and avoidance are simultaneously available. Confl icting viewpoints have, however, been expressed on this matter in Est...
The General Part of the Civil Code Act*1 (GPCCA) that entered into force in Estonia on 1 July 200... more The General Part of the Civil Code Act*1 (GPCCA) that entered into force in Estonia on 1 July 2002 refl ects positions of modern European contract theory. Inter alia, the regulation of transactions as provided in the GPCCA contains the main sets of substantive elements for rescission of transactions, including rescission on the grounds of mistake (§ 92) and fraud (§ 94). The Principles of International Commercial Contracts*2 (PICC), prepared by the UNIDROIT Institute, the Principles of European Contract Law*3 (PECL), prepared by the Commission on European Contract Law acting under the leadership of Professor Ole Lando of the Copenhagen Business School, and the Dutch Civil Code (Burgerlijk Wetboek*4, NBW) may be cited as the sources of the respective provisions.*5 The general elements of mistake and fraud in the GPCCA are highly similar — both mistake and fraud defi ned in the GPCCA may consist in the disclosure of inaccurate circumstances or the non-disclosure of circumstances which...
This article reflects on some of the controversial issues related to implementation of 2014 publi... more This article reflects on some of the controversial issues related to implementation of 2014 public procurement directives, looking at the Estonian public procurement law in the light of the recent developments in the case law of the Court of Justice of the EU (hereinafter CJEU). In particular, we look at obstacles to timely transposition of the 2014 directives, including problematic gold-plating of some aspects of public procurement law by the national legislator.
In recent years, the topic of electronic public procurement has been in the centre of attention, ... more In recent years, the topic of electronic public procurement has been in the centre of attention, mostly in the light of the duty to transfer to fully electronic procurement procedures introduced under the 2014 public procurement directives. However, as several Member States are still reported to show insufficient progress in this area, estimation of the possibilities as well as the challenges associated with different systems of e-procurement is an equally logical step. The Estonian model of eprocurement might hopefully serve as one of possible examples.
Estonia has been moving towards a fully electronic public procurement environment since the year 2001, with 92 % of procurement procedures conducted electronically in 2016. The Article gives a short overview of Estonian electronic procurement system, with attention to legal issues that have been associated with e-procurement. We submit that while single steps in electronic communication in public procurement do not constitute a jump to a new level, the fully electronic procurement as required pursuant to the 2014 directives can be associated with the added quality expected to support the strive for more cross-border competition, transparency and nondiscrimination. Further, resorting to e-procurement as a system itself is a way of supporting innovation that can be viewed as a “cornerstone” of EU public procurement policy.
Establishing the review system in the public procurement, the remedies directives have been in fo... more Establishing the review system in the public procurement, the remedies directives have been in force since 1989 and 1992 respectively, and were subject to review for the last time in 2007. Meanwhile, the substantial EU law on public and utilities procurement, besides being subject to constant development through the EU case law, has undergone extensive reforms by way of introducing new directives first in 2004 and then recently in 2014. In addition to these legal changes, the public procurement situation is undergoing modernisation in the way of digitalisation. However, only some of the developments have found their way into the provisions of the remedies system. With these circumstances in mind, procurement experts have regarded the possibility of an upcoming review of the Remedies Directives as a probability. Still, in 2017 the European Commission's Report albeit somewhat disappointingly reached the conclusion that there was neither major nor urgent need to amend the Remedies Directives.
In the Article, I look at some of the issues that in my mind have a near-fundamental significance and call for either a review or some clarification of certain issues of the remedies directives currently in force. In addition to some long-standing issues such as the regulation of damages and the rules of disclosure, new gaps between the material law and the review system surfaced with the implementation of the 2014 directives.
I also submit that the decision to not update the review system can be regarded as a lost opportunity to promote modernisation and digitalization of the procurement system. Related to the move to e-procurement, some issues of review procedures - even though not necessarily in conflict with the current remedies system – would benefit from analysis already now in order to better facilitate innovation and modernisation within the EU procurement law system. These examples demonstrate the need to consider review or supplementation of the remedies directives.
VKE-de oluline roll majanduses teeb vajalikuks hankereeglite kujundamise selliselt, et taolised e... more VKE-de oluline roll majanduses teeb vajalikuks hankereeglite kujundamise selliselt, et taolised ettevõtjad oleks hanketurule enam kaasatud. Ühe sellise uuendusena näevad 2014. aastal vastu võetud direktiivides 2014/24/EL ja 2014/25/EL ette võimaluse sätestada riigisiseselt hankelepingu täitmisel osalenud alltöövõtjatele hankija poolt otsemaksete tegemise regulatsioon. Hankedirektiivide ülevõtmiseks 2017 jõustunud Eesti riigihangete seadus (RHS) on aga läinud alltöövõtjate kaitse reeglistiku osas hankedirektiividest erinevat teed. Autorid vaatlevad artiklis Eesti seadusandja kehtestatud lahenduse õiguslikku külge: kas hankedirektiivides ettenähtud otsemaksete alternatiivina kujundatud, RHS § 122 lõikes 9 sätestatud maksete peatamise regulatsioon on kooskõlas riigihankeõiguse üldpõhimõtete ja hankedirektiivides viidatud alltöövõtjate kaitse eesmärgiga ning kas sellist alternatiivset regulatsiooni on Eesti õiguse kontekstis võimalik kohaselt ja tõhusalt rakendada.
Üks esimesi ladinakeelseid sententse, mis ülikooli õigusteaduskonnas õppides meelde tuleb jätta,... more Üks esimesi ladinakeelseid sententse, mis ülikooli õigusteaduskonnas õppides meelde tuleb jätta, on "lex specialis derogat legi generali". Praktikas ei pruugi selle printsiibi kohaldamine alati selge ja arusaadav olla. Artikkel käsitleb näiteid üld- ja erinormi kohaldamise kohta 1. septembril 2017 kehtima hakanud riigihangete seaduse puhul. Analüüsime mõningaid printsipiaalseid õiguslikke küsimusi, mis tekivad riigihangete seaduse tõlgendamisel ja kohaldamisel koostoimes järgmiste avaliku õiguse valdkonna seadustega: haldusmenetluse seadus (HMS), avaliku teabe seadus (AvTS), halduskoostöö seadus (HKTS) ning perioodi 2014–2020 struktuuritoetuse seadus (STS).
On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for... more On a fundamental level, the US and the EU law restrict the freedom to modify public contracts for the same reason: to prevent abuse of the fair competition requirement that governs the award of public contracts. A public contract modification must either be consistent with the competition that led to awarding the contract in the first place or alternatively, follow a proper new award procedure. Still, while the underlying rationale of the two systems is the same, differences can appear in details. The article looks at the EU and the US public (government) contract laws with regard to contract modification, and aims to establish if the case law accumulated in the US could serve as a reference when applying the new rules of contract modification in the EU.
This thesis aims to establish the presence of influence of EU procurement law and the hierarchy b... more This thesis aims to establish the presence of influence of EU procurement law and the hierarchy between different legal regimes applicable in contractual relations of procurement. Characteristic features of public contract relations are studied: the extremely limited pre-contractual freedom and compiling of public contract terms; consequences of a breach in the contract award stage upon the validity of contract and specific features of public contract modifications. While all procurement contracts are subject to the general principles of procurement law, the applicable private law is within the competency of the national legislator. In case of a conflict between national private law and EU public procurement law, the latter is superior to the former. However, if a conflict occurs between national private and public law regulation that is not based on EU law, the conflict must be solved on a case-by-case basis and the result may well be the opposite. The study offers suggestions for drafting public contracts and proposes amendments to the Estonian Public Procurement Act in order to facilitate the pursuit of secondary purposes through special contract terms. Concerning the influence of breaches occurring in pre-contractual relations in procurement, the author suggests a more flexibly approach towards contract validity and termination. The conflicting nature of different legal regimes in private law relations of procurement is best illustrated by rules applicable to amending of public contracts. Here, the regulation should aim to achieve a reasonable balance between the rules of EC procurement law, national private law and public interests.
Juhend teadusliku uurimistöö tegemiseks: teadusliku uurimuse olemus, kirjutamise, viitamise ja vo... more Juhend teadusliku uurimistöö tegemiseks: teadusliku uurimuse olemus, kirjutamise, viitamise ja vormistamise reeglid.
Podcast “Article 72 of Directive 2014/24/EU and limitations to contract modifications” in The P... more Podcast “Article 72 of Directive 2014/24/EU and limitations to contract modifications” in The Public Procurement Podcast by P. Telles
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might hopefully serve as one of possible examples.
Estonia has been moving towards a fully electronic public procurement environment since the year 2001, with 92 % of procurement procedures conducted electronically in 2016. The Article gives a short overview of Estonian electronic procurement system, with attention to legal issues that have been associated with e-procurement. We submit that while single steps in electronic communication in public procurement do not constitute a jump to a new level, the fully electronic procurement as required pursuant to the 2014 directives can be associated with the added quality expected to support the strive for more cross-border competition, transparency and nondiscrimination. Further, resorting to e-procurement as a system itself is a way of supporting innovation that can be viewed as a “cornerstone” of EU public procurement policy.
In the Article, I look at some of the issues that in my mind have a near-fundamental significance and call for either a review or some clarification of certain issues of the remedies directives currently in force. In addition to some long-standing issues such as the regulation of damages and the rules of disclosure, new gaps between the material law and the review system surfaced with the implementation of the 2014 directives.
I also submit that the decision to not update the review system can be regarded as a lost opportunity to promote modernisation and digitalization of the procurement system. Related to the move to e-procurement, some issues of review procedures - even though not necessarily in conflict with the current remedies system – would benefit from analysis already now in order to better facilitate innovation and modernisation within the EU procurement law system. These examples demonstrate the need to consider review or supplementation of the remedies directives.
might hopefully serve as one of possible examples.
Estonia has been moving towards a fully electronic public procurement environment since the year 2001, with 92 % of procurement procedures conducted electronically in 2016. The Article gives a short overview of Estonian electronic procurement system, with attention to legal issues that have been associated with e-procurement. We submit that while single steps in electronic communication in public procurement do not constitute a jump to a new level, the fully electronic procurement as required pursuant to the 2014 directives can be associated with the added quality expected to support the strive for more cross-border competition, transparency and nondiscrimination. Further, resorting to e-procurement as a system itself is a way of supporting innovation that can be viewed as a “cornerstone” of EU public procurement policy.
In the Article, I look at some of the issues that in my mind have a near-fundamental significance and call for either a review or some clarification of certain issues of the remedies directives currently in force. In addition to some long-standing issues such as the regulation of damages and the rules of disclosure, new gaps between the material law and the review system surfaced with the implementation of the 2014 directives.
I also submit that the decision to not update the review system can be regarded as a lost opportunity to promote modernisation and digitalization of the procurement system. Related to the move to e-procurement, some issues of review procedures - even though not necessarily in conflict with the current remedies system – would benefit from analysis already now in order to better facilitate innovation and modernisation within the EU procurement law system. These examples demonstrate the need to consider review or supplementation of the remedies directives.