Konkurrencereglernes anvendelse i udbudssituationer – hvilken vej blæser vinden? En juridisk og økonomisk analyse

Cecilie Voss & Cecilie Fanøe Andersen

Student thesis: Master thesis

Abstract

This thesis examines the application of competition rules in public procurement situations and following what the economic consequences are. The analysis has shown that public procurement rules and EU competition rules are fundamentally different in purposes. However similarities can be identified in the sense that both sets of rules seek the objective to create effective competition on the Internal Market. The concept of undertaking means that public entities may be subject to EU competition rules in cases where a given activity can be considered as an economic activity. Furthermore the thesis analysis relevant EU law in order to clarify the ruling of the CJEU in its landmark judgments C-205/03 P FENIN and C-113/07 P Selex. Confer to these rulings the Court recognizes that there may be separation of the activity from the public task if the subsequent use of the purchased good is used for the exercise of an economic activity. The Court held that such a separation could not be upheld. Despite this the thesis concludes that due to the aforementioned ruling the CJEU expands the concept of undertaking. It is thus concluded that the development of a doctrine is seen. The FENIN/Selex doctrine can be justified by economic rationales. It is recognized that it will lead to improved efficiency if public entities is subject to EU competition rules for certain activities. Finally it is concluded that there should be developed a legal concept to regulate the dominant position of a public buyer. The thesis therefore introduces the concept ‘the contracting undertaking'. It is stated that the EU competition rules not can nor should be transferred directly to the contracting authority. This recommendation should be seen in light that the contracting authority operates in the public interest and that these tasks should be subject to protection from the EU competition rules. The thesis concludes that the contracting authorities should be subject to EU competition rules in a modified form, in cases where they operate under the concept of 'the contracting undertaking' as identified in this thesis. The economic consequences hereby will be positive in terms of improved economic efficiency.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2013
Number of pages105