Changes in Prequalified Groups of Economic Operators Due to Insolvency in Procurements Governed By the EU Public Procurement Directives

Hans Terkel Toftager Larsen

Student thesis: Master thesis


This thesis investigates the possibilities to allow a prequalified group of economic operators to continue in a procurement procedure, when an economic operator in the group resigns due to insolvency.
By analyzing applicable law I find out that the area is characterized by lack of clarity as the Danish legislator has regulated the question in Udbudsloven § 147 before the Court of Justice of the European Union has made its ruling in a case on the question, case C-396/14, MT Højgaard A/S and Züblin A/S v Banedanmark. The regulation of the problem is left to the national legislator, but has to be made in respect of the basic principles of procurement stated in the EU public procurement directives. In lack of national legislation the contracting entity can make the decision itself in respect of the principles. In his opinion of the case advocate general Mengozzi states that the Danish rule does not ensure compliance with the basic principles of procurement.
By analyzing economic consequences of Udbudsloven § 147 and the opinion of the advocate general I find that the principles of the Danish rule is Kaldor-Hicks superior to the opinion of the advocate general. This is the result as the Danish rule has a less negative impact on the competition and involves a reduced amount of transaction costs.
In combining the results of the legal and economic analysis, in a legal policy view, I analyze which of the two legal positions that should apply, and if an alternative rule could be applied. I conclude that an alternative rule cannot be Kaldor-Hicks superior to the principles of Udbudsloven § 147 if the requirement of respecting the basic principles of procurement has to be met.
I therefore conclude that the principles of Udbudsloven § 147 is a Kaldor-Hicks superior solution to the problem that respects the basic principles of procurement, and that the Court of Justice of the European Union should make the same ruling in the pending case.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2016
Number of pages83