Article 1

Title

Transposition of the EU Public Procurement Directives 2014 in Austria

Author

  • Bernt Elsner – [email protected]
    Head of the CMS Public Procurement Group. In this position, he leads an international team of more than 140 specialist lawyers. Further, he leads the Austrian teams for public procurement, EU competition and regulatory.
    One of Austria’s leading specialists in the changing and dynamic field of public procurement with 20+ years of experience in Vienna and Brussels. He has influenced Austrian public procurement law through his numerous publications and lectures. He advises contracting authorities on structuring complex tender proceedings, advises and represents clients in procurement litigation matters and has extensive experience in compliance issues in tender procedures.
  • Ruth Bittner – [email protected]
    Associate at CMS Reich-Rohrwig Hainz and a member of the firm’s public procurement, EU competition law and regulatory team. In her work she primarily focuses on the field of public procurement, where she also has a solid academic background: she has authored several publications in specialized journals and gained her doctoral degree in 2017.

Abstract

The EU public procurement directives 2014 further advance the European Commission’s ambitions to regulate most public procurement at the EU-wide level. The Directives already set out a fairly concrete legal framework for national parliaments regarding public procurement procedures for work, supply and service contracts above the EU-thresholds. The Austrian parliament decided to implement these directives mostly word for word, but at the same time tried to preserve most of the historical developments to the public procurement law that were specific to Austria. In addition to that, the Austrian legislature responded to recent ECJ case law that was established after the EU Directives were published.
The new public procurement code creates legal certainty for both contracting authorities and contractors in several different aspects. However, the interpretation of some provisions will be subject to case law, especially regarding contractual cooperation between contracting authorities.
Concerning contracts not fully regulated by the Directives – such as concessions as well as social and other specific services – the Austrian legislature opted not to regulate them further and leave some flexibility to the contracting authorities.

Keywords

Austrian public procurement code, changes to contracts, central purchasing bodies, cooperation between contracting authorities, division into lots, e-procurement, ESPD, inhouse exclusion, innovative procurement, MEAT-principle, passenger transport services, public procurement directives 2014, remedies