LEGAL BASIS FOR ESTABLISHING UNIFIED PUBLIC PROCUREMENT SYSTEMS IN EU COUNTRIES

Abstract

The aim of this article is to investigate the legal basis for the establishment of harmonized public procurement systems in the EU with the focus on the EU’s key public procurement rules and principles, as well as on the general public procurement requirements and approaches applied to their transposition into the national law of EU countries. As a result of this research it has been revealed that the creation of a “single market” (or a “common market”, as it was formerly called) by removing barriers to free economic competition in EU member states played a pivotal role in establishing the EU public procurement law. The study finds that the use of public procurement as a powerful tool for spending public funds in an efficient, sustainable and strategic manner is set out in a number of instruments of the acquis communautaire primary and secondary levels. The EU’s primary level framework contains no acts or even provisions governing public procurement issues. Instead, the EU’s founding treaties of the 1950s, which were later summarized in the Treaty on the Functioning of the European Union, provide for the basic principles that are still applicable to public procurement: transparency, equal treatment and non-discrimination of tenderers on the ground of their origin. The derived EU law for procurement, designed to establish minimum harmonized rules in public procurement markets, governs the way the contracting authorities, i.e. public bodies and certain public utility operators, acquire goods, works and services for public needs. This second-level legal framework is not applicable directly by EU member states, however the procedural rules of the public procurement Directives are subject to transposition into national legislation and apply to public contract values exceeding the established procurement thresholds. As it has been also established, in order to fill the gaps in the current EU legislation the basic principles of the EU founding treaties have been supplemented with some general principles of law derived from the case law of the European Court of Justice, which are used as non-written rules in national proceedings of EU member states. With dew regard to the commonly accepted public procurement strategy which sets out the overall policy framework in this area, achieving compliance of national legal systems with the EU acquis is a clear priority of the procurement improvement process and an important criterion for assessing the country’s readiness for EU membership. Given the prospect of EU membership, Ukraine needs to make consistent efforts to pursue adaptation of the national legislation in public procurement. For this purpose the requirements of EU public procurement law, presently being under dynamic development, should become the subject of further scientific researches which results must be communicated to all stakeholders.