Ethics and information management

Student ID: 4246090

Module Code: M34041

In relation to ANY TWO of the following, compare, contrast and evaluate the approach of, on the one hand, EU law in the TFEU and EU directives 2014/24/EU (Public Contracts Directive) and 2014/25/EU (Utilities Directive) and, on the other hand, the WTO Agreement on Government Procurement 2012 as contained in the WTO document GPA/113(GPA):

the coverage of contracts awarded by public undertakings;
the use of public procurement to promote participation of small and medium sized enterprises (SMEs);
the use of negotiation in award procedures.

Introduction

It is admitted that public procurement contracts have gained more importance recently in the contrast that laws and regulations became necessary to regulate the process. The reason of these regulations is to ensure that the procurement process goes in a transparent and non-discriminatory way. An example of these regulations are EU public contract directive, EU utilities directive and the WTO agreement on government procurement (GPA).

          The main difference between the abovementioned laws is that the first two directives are derived form the European Union treaties which adheres member states to oblige with it, which is also derived from the main principles that the EU adopts such as transparency and equal competition. On the other hand, the GPA agreement is based on negotiations between its members which means that its member states must accept the principles. Thus, more flexibility could be seen in GPA more than EU directives as its member states can make for instance exceptions to the agreement.

          This essay will argue that the GPA agreement provides more flexibility than EU directives, in terms of the coverage of contracts awarded by public undertakings and the use of negotiations in award procedures. In order to discuss these issues, the paper will be structured as follows: the first aspect will be comparing between both EU public contracts and Utilities directives and the GPA agreement and it will compare and evaluate between these two legislations. The second aspect will place emphasis on the use of negotiations in EU directives and the GPA agreement.

The Coverage of Contracts Awarded by Public Undertakings
The types of contracts covered under ‘public undertakings’ differ from one law to another. This paper will discuss the differences between certain EU directives (the Public Contracts Directive and the Utilities Directive) and the WTO Agreement on Government Procurement, known as the GPA.

The Coverage of Contracts Under the EU Public Contracts Directive
It is well known that the EU intends to open markets among its member states and attempt to break barriers in those markets. This development could be made possible under the Treaty on the Functioning of the European Union (TFEU) through many of its articles, such as the free movement of goods (Article 34), the freedom of providing services (Article 56), and the freedom of establishment (Article 49).[1] The main purpose of opening markets is to spread peace, since promoting economic cooperation between member states of the European Union has the potential to achieve this aim, especially after the devastation of the World War II.

In order to achieve this aim, many concepts have been adopted in the EU laws on public procurement, such as providing transparency and abandoning discrimination of foreign suppliers directly or indirectly. In fact, the treaty goes even further to conclude that any restriction on procurement is a violation, even if it affects both national and foreign suppliers. This could be seen in Commission v Netherlands, when the court held that a requirement to use the UNIX operating system violated Article 34 of the TFEU because, even if did not favour domestic products, it excluded firms from using systems other than UNIX.[2] This shows the emphasis that the TFEU puts on competition, prohibiting any kind of discrimination or limiting of this competition, even if it affects both national and foreign suppliers.

     The reason for adopting such strict laws prohibiting any discrimination for both national and foreign suppliers was that discrimination was identified in national public purchasing. This was seen as an obstacle to a single free European market.[3] In 1985, a survey of five member states (the UK, Italy, France, Germany and Belgium) revealed import rates of 22 per cent for their economies as a whole, while the figure for the public sector was some 2 per cent.[4] This gap showed that public purchasers were favouring national suppliers more than foreign ones and led to a series of European procurement directives to eradicate discriminatory practices in favour of national suppliers.[5] These directives became important with the passage of time due to the expansion of both quantitative and qualitative public contractual action.[6] The European procurement directives which prohibit discrimination go even further in putting conditions on public bodies, to the extent that public entities are not free to choose their contractual partners if they intend to start a public-private partnership.[7] In other words, the procuring entity must follow a formal procedure in choosing the private party.[8]

     The EU Public Contracts Directive covers three types of contracts: public works contracts, public supply contracts and public service contracts.[9] Public works contracts include works identified in Annex II of the directive, while public supply contracts are essentially those which have as an objective ’the purchase, lease, rental or hire-purchase with or without an option to buy, of products’. Public service contracts can be defined, in general, as works that are a type of service.[10] Those three types of contracts seem to be distinguishable, since the characteristics of each of them are identifiable. In other words, the procuring entity has the potential to identify whether a contract is one of these types and thus will be covered by the EU Public Contracts Directive. However, a problem might occur if these three types of contracts overlap. For example, a single contract might include public works and, at the same time, a service. This situation is known as a ‘mixed contract’.

     A mixed contract could be simply defined as a contract which contains work, service or supply in a single contract.[11] The provision of mixed contracts is based on the types which are integrated. If the mixed contract is a mix between works and services or a mix between works and supplies, the authority must then apply rules that are applicable to the type of procurement that characterises the main subject of the contract in question.[12] If the contract is a mix between supplies and services, the assessment is relatively easy, since the procuring entity has to apply the value test instead of the purpose. That means the value of supply versus services is the main test in deciding which rules to apply.[13] Therefore, the procuring entity must identify the characteristics of a contract in order to apply the appropriate rules.

It could be argued that the main characteristic of a contract is vague, which gives the procuring entity a wide discretion to apply the rules it finds suitable. For example, Gestión Hotelera, a Spanish procuring entity, concluded a contract to renovate a hotel and fit out a casino.[14] This contract was challenged, and it was argued that carrying out renovation work meant that a notice had to be published in the official journal.[15] The Court of Justice of the European Union (CJEU) held that this contract was not a public works contract because the ‘work’ was not the main objective, but rather incidental to the installation.[16]

     The court’s judgement raises an additional question about the meaning of incidental actions and how they should be characterised in a contract. The European Commission also referred to the purpose test, but it did not elaborate how it would be determined.[17] If we assume that in the abovementioned case (the renovation of a hotel) the casino fit out is more expensive than the renovation, and that this casino will be the main attraction for consumers, is the main purpose of the contract a work (establishing a casino)? Or would the judgment remain the same? The CJEU commented as follows in Commission v Italy on how to decide the purpose of the contract:

The assessment must be made in the light of the essential obligations which predominate and which, as such, characterize the transaction, as opposed to those which are only ancillary or supplementary in nature and are required by the very purpose of the contract; the value of the various matters covered by the contract is, in that regard, just one criterion among others to be taken into account for the purposes of the assessment.[18]

This assessment still does not give an indication of the meaning of the main subject of the contract, as it says that the assessment must be made in light of the essential obligations which predominate. This does not help the procuring entity identify the main purpose of the contract, and thus know what rules should be applied.

     Whether mixed or not, the contracts covered under the EU Public Contracts Directive must be above a certain monetary threshold for each type.[19] For work contracts that threshold is £4 104 394, for service contracts it is £106 047 and for supply contracts it is £106 047 (for some contracting authorities it is £164 176).[20] If a contract is below the threshold, the procuring entity is still obliged to apply the rules of the EU treaty, since this treaty has to be applied regardless the value of the contract. However, the EU directives are only obligatory if the contract is above the threshold.[21] More specifically, if the contract is below the threshold, member states have to apply rules related to free movement of goods, freedom to provide services, and freedom of establishment, as well as the principles related to them such as transparency, equal treatment and non-discrimination.[22]

These principles have to be applied under one condition: cross-border interest. If this condition is not satisfied, the EU treaty does not apply.[23] This condition means that a contract that is below the threshold must attract foreign suppliers so the EU treaties’ principles can be applied. When the contract is above the threshold, it is assumed to attract cross-border interest. This raises questions about when cross-border interest exists and how that line can be drawn; for example, small value contracts in a specific field might attract cross-border interest while in other fields they might not. This condition can be predicted and thus a wide discretion given to the European courts in deciding whether the contract attracts a cross-border interest or not.

     The final point that can be discussed under the EU Public Contracts Directive is that this directive does not cover concession contracts, since these types of contracts differ from public procurement contracts for the following reasons.[24] First, in concession contracts, the supplier charges a fee to the public for the service or the work in the contract, not the public body.[25] This situation goes against the idea of public procurement where the government pays the supplier. The second reason is that the operator bears the economic risks, rather than the public body.[26] This also goes against the concept of public procurement, where the public body takes on some risk and not only the supplier. As a result of these major differences, the Directive on Public Procurement was deemed not suitable to handle with these concession contracts, and thus the Concessions Directive was adopted in 2014 to cover these kinds of contracts.[27]

The Coverage of Contracts Under the EU Utilities Directive
The EU Utilities Directive can be defined simply as the directive applied if the scope of a contract involves water, transport, energy, or postal service.[28] This directive gives public bodies more flexibility than the EU Public Contracts Directive, which is the main reason for not including these activities under that directive. There might also be a lack of political will to combine them; member states tend to prefer national suppliers for those major activities, since they are considered essential activities in every country.[29] As a result of this tendency, if a contract is mixed and includes utilities (for example, water or energy), then the Utilities Directive has to be applied.[30] One might question whether this rule is applied regardless of the focus of the contract. For example, if the contract includes an activity covered by the Utilities Directive (such as energy development), plus an activity not covered by that directive, would that mean that the Utilities Directive has to be applied, even if the main focus of the contract is not on the energy? Since the law does not distinguish whether the activities covered by the directive have to be the main focus in the contract, it could be argued that the Utilities Directive must be applied regardless of the focus. This shows clearly the preference to apply this directive more often than the Public Contracts Directive.

     The flexibility of the EU Utilities Directive can be demonstrated by looking at the thresholds it includes for each type of contract, which are higher than those included in the EU Public Contracts Directive. Contracts must be worth more than EUR 414 000 for supply and service contracts as well as for design contests, EUR 5 186 000 for works contracts, and EUR 1 000 000 for service contracts for social and other specific services listed in Annex XVII.[31] The reason for the higher thresholds is that essential activities, such as those involving water, are considered to be linked to national security, requiring more flexible rules.

     There is an exception to these high thresholds for activities covered by the directive: when the activity is directly exposed to competition in markets where access is not restricted.[32] In these competitive markets there is pressure on the public body to procure in a commercial way, without favouring national firms or products. This point of view goes with the theory of the perfect market, which argues that if market pressure works perfectly, no legislation or intervention by the state is necessary.[33] The thinking goes that consumers will not need to be protected by the state because they send signals to suppliers about what they value. Suppliers who provide these interests will do well, while those who do not will lose customers and fail.[34]

      The abovementioned argument can be criticized by pointing out that the meaning of a ‘competitive market’ is not clear. More specifically, the concept of the perfect market—which is more general than the concept of a competitive market—is equally imprecise. For instance, it is argued that one of the characteristics of the perfect market is the possibility of free entry to and exit from the market, which means increasing competition. If this condition is limited, then the theory of the perfect market is damaged.[35]

This idea has been proven to not work effectively in the modern market for the following reasons. First, certain industries are regulated. For example, the state cannot allow any manufacturer to produce medicines and sell them to the market without state testing. Another example is that banks cannot be established without approval by the state due to their profound effect on the economy. The second reason is that the theory, which is compatible with the competitive market idea, assumes that consumers are rational. Many experts have proven that this assumption is mistaken.[36] For instance, Hopkins—the famous man who convinced Americans to buy his toothpaste in the 1930s—argued that knowing the psychology of consumers would lead to a significant success.[37] He found the simple and obvious cue (the importance of brushing) and clearly defined the reward (clean teeth).[38] He made consumers want to use his product without a rational reason, but rather based on their habits.

These examples show that concepts such as the perfect market or competitive market cannot be defined easily because they are based on unrealistic assumptions. Therefore, it follows that the competitive market exception included under the Utilities Directive is also unclear and can be criticized for the same reasons as the theory of the perfect market. Nevertheless, it allows public bodies to use this exemption widely in order to avoid applying the directive to their contracts.

The Coverage of Contracts Under the World Trade Organization Agreement on Government Procurement
The World Trade Organization (WTO) is an international organisation which deals with the rules of trade between nations. Its main goal is to help producers of goods and services conduct their businesses. This organisation has many agreements, one of which is the agreement on government procurement (GPA). It is a purgatorial agreement, which means that it binds only those members who decide to join.[39] The GPA is more flexible than both the EU Public Contracts Directive and the EU Utilities Directive, because its members have to accept the principles that apply to them. Under the EU directives, members are bound by the principles adopted by the EU treaties, such as non-discrimination.

     The GPA covers procurement, meaning procurement for governmental purposes.[40] This leads to the question of the meaning of governmental purposes. In the case of Canada’s renewable energy, it was demonstrated that the concept of ‘governmental purposes’ refers to what is consumed by government or what is provided by government to recipients in the discharge of its public functions.[41] This definition raises further questions, such as what the public functions are and whether everything consumed by the government is for governmental purposes. These questions might be important if governments have different responsibilities towards the recipients of their goods and services, and thus different obligations under the GPA. It is also unclear who decides what the responsibilities of governments are. A government that has few responsibilities would have fewer public procurement contracts that are subject to the GPA. For governments with more responsibilities, the GPA would be applied in all of its public procurement contracts; this situation might be considered unfair.

      The principles adopted by the GPA are significantly different than the ones adopted by the EU treaties. In the GPA, countries are allowed to treat domestic industries more favourably than foreign industries.[42] They might prefer domestic suppliers if a competition were held between them and foreign ones, or they might prevent foreign suppliers from participating at all.[43] One possible reason for such flexibility is to stimulate some developing countries under the GPA. Their national suppliers might not be able to compete with foreign companies, leaving them in danger international companies.[44] Another possible reason is political in nature, as governments prefer to use domestic companies rather than foreign ones to achieve some political advantages, such as growing national companies which could help national security.[45] For these reasons, not adopting non-discrimination principles in the GPA might be justified.

     The principles adopted by the GPA are not the only differences between it and the EU directives. It also differs in relation to its thresholds, which members are allowed to increase or decrease. In other words, there is no standardised threshold for activities covered by the agreement; each member state has its own threshold.[46] For instance, in annexes 2 and 3, the threshold is completely different from one member state to the next, which means that they have the potential to increase the threshold significantly in order to decrease the possibility of applying this agreement in many contracts.[47]

     The GPA goes even further by allowing member states to exempt certain activities from the application of this agreement. For instance, Japan made several exceptions for contracts that cover ’daily profitmaking activities’.[48] Another example is exempting the bus transportation sector or bus services.[49] Moreover, many states, such as Canada and the US, made some exceptions in order to support small businesses.[50] This shows clearly the flexible approach held by the GPA, as it allows member states to make some exceptions to the agreements as well as increasing the threshold of contracts.

 The Use of Negotiation in Award Procedures Under the EU Directives and the GPA
Negotiations Under the EU Public Contracts Directive and the EU Utilities Directives
The use of negotiations is allowed under both the EU Public Contracts Directive and the Utilities Directive, with the latter being the more flexible. The EU Public Contracts Directive has the strictest rules. There are six types of award procedures under this directive—open procedure, restricted procedure, competitive dialogue, competitive procedure with negotiation, innovation partnership and negotiated procedure without prior publication.[51] However, in general, member states are allowed to use only the open procedure and restricted procedure as they are the formal methods of procurement. Both of these methods prohibit the use of negotiations in their procedures.[52] In general terms, the directive seems to indicate that the use of negations might increase the possibility of corruption.

     Negotiations are allowed under two of the other procedures: competitive procedure with negotiation and negotiated procedure without prior publication.[53] The former can be applied only if one of the following occurs: the needs of the contracting authority cannot be met without adaptation of readily available solutions, and they include design or innovative solutions.[54] The latter can be applied in very limited cases, namely, when no tenders, (or no suitable tenders, or no requests to participate, or no suitable requests to participate) have been submitted in response to an open procedure or a restricted procedure.[55] In other words, this method is used when competition is absent for technical reasons.[56] These two procedures are the only ones in which negotiations can be conducted, and they can be applied only in very limited circumstances.

     It could be argued that grounds for using the abovementioned procedures are not clear, and it gives the procuring entity a wide discretion to rely on them and thus use them to allow negotiations. For instance, it has been demonstrated that the procuring entity can use ‘competitive procedure with negotiation’ if innovative solutions are needed.[57] One might argue this concept is vague as an ’innovative’ concept cannot be identified. In fact, this concept launched an endless debate in patent law, as it has been argued that ‘inventive’ means not obvious to a skilled person in that particular art.[58] In other words, people who work in the art or in the field cannot easily reach this inventive solution. If the procuring entity wants to rely on the need for inventive solutions as a basis for applying ‘competitive procedure with negotiation’, it needs to prove that the suppliers cannot provide inventive solutions. This raises questions about the extent to which the procuring entity considers a solution as inventive, that is, what the difference is between an inventive solution and an ordinary solution. The procuring entity can demand that negotiations are needed to reach an inventive solution, and thus avoid applying the formal procedures (open tendering or restricted tendering).

     The EU Utilities Directive uses a more flexible approach than the EU Public Contracts Directive in terms using of the award procedures, and thus expanding the use of procedures which allow negotiations. In the Utilities Directive, the procuring entity is free to choose from the producers covered by the directive.[59] It does not have to use open tendering, which is considered the most transparent procedure, but instead might use the competitive dialogue procedure. It could be argued that giving wide discretion to the procuring entity might not be wise, as it has been demonstrated that member states tend to favour dealing with national suppliers. By giving them the ability to use any procedure, they might decrease the number of foreign suppliers, which might disregard the principles of the EU treaties, such as the non-discriminatory clause.

     It seems obvious and rational that the Utilities Directive provides a flexible approach for the procuring entities because its main purpose is to provide alternatives for the activities it covers. However, it is unclear how a balance can be struck between this flexibility given to member states and the principles covered by TFEU. More specifically, it seems difficult to achieve transparency and non-discrimination if the procuring entity is allowed to decrease the number of suppliers without setting criteria for this limitation. Thus, it is also unclear how to apply the principles of the TFEU in a procurement with such a significantly flexible approach. This flexibility can be seen, for instance, in the directive where the procuring entity can exclude suppliers which have proven unreliable.[60] From this basis, the procuring entity can exclude interested suppliers by simply arguing that the supplier is not reliable, since there is not a clear meaning of the concept ’reliable’. This shows the significant flexibility that the EU Utilities Directive provides in contrast to the EU Public Contract Directive.

Negotiations Under the GPA
The GPA provides the most flexible approach in comparison to both the EU Public Contracts Directive and the EU Utilities Directives. The award procedures covered by the GPA can be divided into three types: open tendering, selected tendering and limited tendering.[61] The procuring entity can choose any of these except the limited procedures, which means that open tendering is not the main method. Aside from explaining the award procedures, negotiations can be widely used under the GPA, which might give the procuring entity a better chance to get to know suppliers, and thus increase the possibility of corruption.

      The procuring entity can conduct negotiations in all procedures where (1) the entity has indicated its intent to conduct negotiations in the notice of intended procurement, and (2) where it appears from the evaluation that no tender is obviously the most advantageous.[62] The second condition means that the procuring entity can conduct negotiations merely by arguing that no tender is the most advantageous, and since one cannot predict whether the tender is the most advantageous or not, this gives a wide discretion to the procuring entity to conduct negotiations. As it is known, expanding negotiations increases the chance for corruption. Even more troubling is the first condition, which means that the procuring entity can use negotiations by merely indicating that negotiations will be used. This means the procuring entity provides no justification for negotiations. These conditions show clearly that the GPA allows the free use of negotiations more than both the EU Public Contracts Directive and the Utilities Directive.

Conclusion

It could be argued that the GPA provides a much more flexible approach in both the coverage of contracts awarded by public undertakings and using negotiations in the award procedures than the EU directives. A possible reason for this is that the GPA was developed after negotiations and in order to protect the interests of WTO member states. In contrast, the EU treaties were based on the principles adopted by the European Union and its member states, who have to adhere to these principles. Thus, it is reasonable to notice that the GPA is much more flexible than the EU directives (both the Public Contracts Directive and the Utilities Directives).

Bibliography:

Arrowsmith S, Government Procurement in the WTO (Kluwer Law International 2003) 349
Averitt N and Lande R, Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law (1997) 65 (3) Antitrust Law Journal, 713-756.
Baeza M and Vassallo J, Private concession contracts for toll roads in Spain: analysis and recommendations (2010) 30 (5) Public Money & Management, 299-304
BOLDEMAN L, The Cult of the Market: Economic Fundamentalism and its Discontents (2007, ANU Press).
Bulum B, Pijaca M and Zuzul M, Directive 2014/23/EU on the Award of Concession Contracts and Its Application in the Shipping Sector (2016) 66 (2) Zbornik Pravnog Fakulteta u Zagrebu, 309-334
Chirulli P, Public Contracts (2011) 34 (1) International Journal of Public Administration, 134-137
Dragos D and Vornicu R, Public Procurement below Thresholds in the European Union – EU Law Principles and National Responses (2015) 10 (3) European Procurement & Public Private Partnership Law
Duhigg C, The power of habit: Why we do what we do in life and business (2012, Random House Trade Paperbacks)
Grier J, Japan’s Implementation of the WTO Agreement on Government Procurement (1996) 17 (2) University of Pennsylvania Journal of International Economic Law, 605-658.
Incardona R and Poncibo C, The average consumer, the unfair commercial practices directive, and the cognitive revolution (2007) 30 (1) Journal of Consumer Policy, 21–38.
Koten S and Ortmann A, The unbundling regime for electricity utilities in the EU: A case of legislative and regulatory capture? (2008) 30 (6) Energy Economics, 3128–3140
MARTIN S, KEITH HARTLEY AND ANDREW COX, Public procurement directives in the European Union: a study of local authority purchasing (1999) 77 (2) Public Administration, 387-406.
Ramsay I, Rationales for Intervention in the Consumer Marketplace: An Occasional Paper Prepared for the Office of Fair Trading (OFT 1984).
Reich A, THE NEW TEXT OF THE AGREEMENT ON GOVERNMENT PROCUREMENT: AN ANALYSIS AND ASSESSMENT (2009) 12 (4) Journal of International Economic Law, 989–1022.
Semple A and Andrecka M, Classification, Conflicts of Interest and Change of Contractor: A Critical Look at the Public Sector Procurement Directive (2015) 10 (3) European Procurement Public Private Partnership Law Review, 171-186
Torremans P, Holyoak and Tor­remans Intellectual Property Law, (8th ed., 2016, OUP).
Wang P, COVERAGE OF THE WTO’S AGREEMENT ON GOVERNMENT PROCUREMENT: CHALLENGES OF INTEGRATING CHINA AND OTHER COUNTRIES WITH A LARGE STATE SECTOR INTO THE GLOBALTRADING SYSTEM (2007) 10 (4) Journal of International Economic Law, 887–920.
Yukins C and Schnitzer J, GPA Accession: Lessons Learned on the Strengths and Weaknesses of the WTO Government Procurement Agreement (2015) 7 (1) Trade, Law and Development, 89-119

[1] the treaty on functioning of the European Union, Article (34) (56) (49)

[2] Case C-359/93, Commission v Netherlands (“UNIX”) [1995] E.C.R. I-157

[3] STEPHEN MARTIN, KEITH HARTLEY AND ANDREW COX, Public procurement directives in the European Union: a study of local authority purchasing (1999) 77 (2) Public Administration, 387-406.

[4] ibid

[5] ibid

[6] Paola Chirulli, Public Contracts (2011) 34 (1) International Journal of Public Administration, 134-137

[7] ibid

[8] ibid

[9] The Public Contracts Directive 2014

[10] The Public Contracts Directive, Article 2(1)(6), 2(1)(8) and 2(1)(9)

[11] Abby Semple and Marta Andrecka, Classification, Conflicts of Interest and Change of Contractor: A Critical Look at the Public Sector Procurement Directive (2015) 10 (3) European Procurement Public Private Partnership Law Review, 171-186

[12] ibid

[13] ibid

[14] Case C-331/92 Cestion Hotelera InternationalSA [1994] ECR 1-1329.

[15] ibid

[16] ibid

[17] Semple and Andrecka (n 11)

[18] Case C-412/04 Commission v Italy [2008] ECR 1-619 [48-49].

[19] Dacian Dragos and Roxana Vornicu, Public Procurement below Thresholds in the European Union – EU Law Principles and National Responses (2015) 10 (3) European Procurement & Public Private Partnership Law Review, 187-206.

[20] EU Public Contracts Directive 2014

[21] Dragos and Vornicu (n 19)

[22] ibid

[23] ibid

[24] Bozena Bulum, Marija Pijaca and Marina Zuzul, Directive 2014/23/EU on the Award of Concession Contracts and Its Application in the Shipping Sector (2016) 66 (2) Zbornik Pravnog Fakulteta u Zagrebu, 309-334

[25] María Baeza and José Vassallo, Private concession contracts for toll roads in Spain: analysis and recommendations (2010) 30 (5) Public Money & Management, 299-304

[26] ibid

[27] Bulum, Pijaca and Zuzul (n 24)

[28] Chapter II of the EU utilities directive 2014

[29] Silvester Van Koten and Andreas Ortmann, The unbundling regime for electricity utilities in the EU: A case of legislative and regulatory capture? (2008) 30 (6) Energy Economics, 3128–3140

[30] Article 6 of the EU utilities directive 2014

[31] Article 15 of the EU utilities directive 2014

[32] Article 34 of the EU utilities directive 2014

[33] LEE BOLDEMAN, The Cult of the Market: Economic Fundamentalism and its Discontents (2007, ANU Press).

[34] Neil Averitt and Robert Lande, Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law (1997) 65 (3) Antitrust Law Journal, 713-756.

[35] Iain Ramsay, Rationales for Intervention in the Consumer Marketplace: An Occasional Paper Prepared for the Office of Fair Trading (OFT 1984).

[36] Rossella Incardona and Cristina Poncibo, The average consumer, the unfair commercial practices directive, and the cognitive revolution (2007) 30 (1) Journal of Consumer Policy, 21–38.

[37] Charles Duhigg, The power of habit: Why we do what we do in life and business (2012, Random House Trade Paperbacks)

[38] ibid

[39] Ping Wang, COVERAGE OF THE WTO’S AGREEMENT ON GOVERNMENT PROCUREMENT: CHALLENGES OF INTEGRATING CHINA AND OTHER COUNTRIES WITH A LARGE STATE SECTOR INTO THE GLOBALTRADING SYSTEM (2007) 10 (4) Journal of International Economic Law, 887–920.

[40] Article II of the GPA

[41] Appellate Body Reports, Canada-Certain Measures Affecting the Renewable Energy Generation Sector and Canada-Measures Relation to the Feed-In Tariff Program, WT/DS412/AB/R and WT/DS426/AB/R, adopted 24 may 2013 (“Canada Renewable Energy”)

[42] Christopher Yukins and Johannes Schnitzer, GPA Accession: Lessons Learned on the Strengths and Weaknesses of the WTO Government Procurement Agreement (2015) 7 (1) Trade, Law and Development, 89-119

[43] ibid

[44] ibid

[45] ibid

[46] The GPA, Article II and III

[47] ibid

[48] Jean Grier, Japan’s Implementation of the WTO Agreement on Government Procurement (1996) 17 (2) University of Pennsylvania Journal of International Economic Law, 605-658.

[49] Annex 3 of the GPA

[50] Sue Arrowsmith, Government Procurement in the WTO (Kluwer Law International 2003) 349

[51] Chapter I of the EU Public Contracts Directive 2014

[52] Article 26(2) of the EU Public Contracts Directive 2014

[53] Article 26(4) of the EU Public Contracts Directive 2014

[54] ibid

[55] Article 32(2)(a) of the EU Public Contracts Directive 2014

[56] Article 32(2)(b) of the EU Public Contracts Directive 2014

[57] see (n 53)

[58] Paul Torremans, Holyoak and Tor­remans Intellectual Property Law, (8th ed., 2016, OUP).

[59] Article 93 of the EU utilities directive 2014

[60] Paragraph 106 of the EU utilities directive 2014

[61] Arie Reich, THE NEW TEXT OF THE AGREEMENT ON GOVERNMENT PROCUREMENT: AN ANALYSIS AND ASSESSMENT (2009) 12 (4) Journal of International Economic Law, 989–1022.

[62] Article XII of the GPA 2012

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Plagiarism free papers
Timely delivery
Any deadline
Skilled, Experienced Native English Writers
Subject-relevant academic writer
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Get superb grades consistently

How It Works
1.      Place an order
You fill all the paper instructions in the order form. Make sure you include all the helpful materials so that our academic writers can deliver the perfect paper. It will also help to eliminate unnecessary revisions.
2.      Pay for the order
Proceed to pay for the paper so that it can be assigned to one of our expert academic writers. The paper subject is matched with the writer’s area of specialization.
3.      Track the progress
You communicate with the writer and know about the progress of the paper. The client can ask the writer for drafts of the paper. The client can upload extra material and include additional instructions from the lecturer. Receive a paper.
4.      Download the paper
The paper is sent to your email and uploaded to your personal account. You also get a plagiarism report attached to your paper.

 

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