Et retspolitisk syn på forhandling i EU-udbud

Rie Jochumsen

Student thesis: Master thesis


This thesis primarily seeks to create a link between the derivation of the law and the legal policy and its development of the law. This link will be the basis for developing the most efficient regulation for the possibility to negotiate in public procurement. Economic theory forms the base for the link, in order to make it as scientifically correct as possible, but first it is essential to derive the law that concerns negotiation in EU procurement. In public procurement law there is a general negotiation ban which prohibits any negotiation or common dialogue between the public and private parties. This ban is derived from the general principles in EU law, and includes any risks that can, or might potentially compromise the competition within the single market. However, there is an immediate possibility to have the legal principle of equal treatment and the possibility to negotiate, coexist in public procurement law. By using economic efficiency theory it is established that the negotiation ban is economically inefficient, because there exists a possibility to obtain a higher economic value by allowing the parties to negotiate with each other. The ultimate value is measured and based on neoclassical economic theory, which is then criticized by behavioural economic theory that shows how it is not always possible to achieve the highest value. Therefore, involving the results from the material analysis, an economic analysis of efficiency should be based on Pareto-efficiency. Finally, the legal and economic elements are combined in a legal political analysis, in order to shape the most efficient regulation for the public and private parties’ ability to negotiate with each other in public procurement. The conclusion for the thesis is, that economic theory can create a link between the two legal disciplines, and thus create a more efficient regulation, because economic theory seeks to maximize the value for the parties involved. Furthermore, the negotiation ban should be lifted, given that this will mean a higher value for the parties. Consequently, the negotiation ban is economically inefficient.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2012
Number of pages86