Visiting the Walter Eucken Institut: Ordoliberalism

Since early November 2014 I have had the opportunity to visit the Walter Eucken Institut to do research on the Freiburg School of Law and Economics: Ordoliberalism.

Ordoliberalism – also known as German Neo-Liberalism - is a school of economic (and legal) thought that was born in Germany in the decade of 1930 and influenced its economic development after the WWII. This was partially carried out due to the influence of first Minister of Economy and then Chancellor Erhard, who proposed following ordoliberal ideas as the basis for the “German Economic Miracle” and the concept of Social Market Economy. 

Ordoliberalism proposes a third way between, on the one hand, traditional liberalism and absolute market freedom and, on the other hand, state planned economy. To do, it suggest adopting a set of (legal) rules that will guide the economic behavior of individuals in the market to produce an outcome close to the economic ideal. This set of rules will foster individual economic freedom, growth and stability. For ordoliberalism the competitive process should be guiding mechanism of economic exchanges. Because of this, proper competition should be protected be preventing undertakings from "cheating the rules" economic efficiency follows. Consequently, it is the role of the state to set the rules and ensure that economic parties comply with them by acting as an investigator and judge. The state, thus, acts as a “market police”, through the competition authority, to ensure the respect of competition law.

Ordoliberalism is of great interest to me because I employ this economic theory to develop an analytical framework to discuss what ought to be the regulation of buyer power in EU competition and public procurement law. Not only do I agree in a personal level with many of its postulates, but also because ordoliberalism proposes limiting market power from both the public and private sector in a holistic manner, which serves my purpose of regulating buyer power in both public and private markets.

In these already 2 months I have been in Freiburg I have been able to familiarize with this trend of economic thought, reflect on it and understand what implications it has for the regulation of buyer power in competition law. It has been a fascinating task that transported me from the world of competition law and competition microeconomics to a broader level of speech in macroeconomics and constitutional economics (the ordoliberals, at least the founding fathers, were/are not microeconomists). Also, not only I have been able to live in Freiburg (a nice university city) but also meet friendly, interesting and very well prepared scholars. To all the team at the Walter Eucken Institut: Vielen Dank!

If you are interested to know a bit more about my stand on ordoliberalism and buyer power, do contact me by email!

EU/EEA Public Procurement Law at the UiB

At the University of Bergen (“UiB”) we are also teaching EU and EEA public procurement law. For the first time in more than four years, our Faculty of Law offered a course that was mainly targeted to exchange students but also to Norwegian students. This course was firstly offered in the Spring Semester 2014 and due to its success, it was re-offered in the Autumn Semester 2014. As it currently looks, the course will continue in the Autumn of 2015 as well.

Photo: 

Emil Breistein

Copyright: 

Universitetet i Bergen

In our course we explore the most relevant aspects of EU/EEA public procurement law. Our classes mainly deal with the Public Sector Directive but we also cover, succinctly, some relevant aspects of the Utilities and new Concessions Directive. We do so by discussing the 2004 and 2014 Directives as we want to offer students with the present and the future of public procurement. For an overview of the lectures, reading materials and exam modalities, see the link to our course at: http://www.uib.no/en/course/JUS285-2-A

I have the pleasure to lecture the course with a group of very qualified and fantastic people at the UiB and even abroad. We are a group of four lecturers covering 11 sessions and touching topics not only related to public procurement but other areas of the law, such as competition law and state aid. The lecturers this year were: Ms. Linda Midtun; Ms. Malgorzata Cyndecka and Mr. Anders Thue. It has been a great experience working with all of them!

Also, the course helped organizing an international seminar discussing the interrelation between public procurement and competition law. You can watch the recording of the seminar at: http://beccle.no/beccle-seminar-the-interaction-between-eueea-public-procurement-and-competition-law/

Lastly, our team was kindly invited to participate at the Annual Seminar of the Norwegian Complaints Board for Public Procurement (KOFA) and we look forward to strenghtening our ties with them for future joint activities.

All in all, if you are looking for a course on EU/EEA public procurement law and related activities now you know where to go!

Looking forward to seeing you in Bergen!

Photo: 

Paul S. Amundsen

Copyright: 

University of Bergen

Some publications already out in 2014 and coming as well in 2015!

On the latest issue of the Public Procurement Law Review I published an analysis of the EFTA-Court Judgment E-24/13 Casino Admiral AG v Wolfgang Egger.

This case analysis reviews the treatment given by the EFTA Court to the breaches to the obligation of transparency when awarding public concession contracts. Also, the paper analyses what would be the outcome of a similar case with the entry into force of Directive 2014/23/EU on the award of concession contracts. For further details, see:

Ignacio Herrera Anchustegui, EFTA Court case E-24/13 Casino Admiral AG v Wolfgang Egger: the obligation of transparency and consequences of its breach when awarding service concessions, The Public Procurement Law Review, 2015 (1), pgs. NA1-NA9.

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Also, I had the pleasure of writing with Albert Sánchez Graells, senior lecturer in commercial law at the University of Leicester,  a working paper on the new rules on centralisation and occasional procurement under articles 37-39 of Directive 2014/24.

The paper assesses the risks, rationale and justification for the rules on centralisation and aggregation of public procurement in Directive 2014/24. The paper is entitled “Impact of public procurement aggregation on competition. Risks, rationale and justification for the rules in Directive 2014/24″ and is now part of the University of Leicester School of Law Research Paper Series.

The paper explores the justifications advanced for the aggregation of purchasing and the countervailing risks it generates. In both cases, it focusses in economic and administrative aspects. It then proceeds to a summary overview of the new rules for the aggregation of public procurement in Directive 2014/24, and emphasised how the Directive is expressly recognising possibilities that clearly exceed the more modest approach in Directive 2004/18. Moving on, it then focusses on the potential justification for certain activities now permitted by the 2014 rules, and engages in a critical assessment of their competitive impact. The paper briefly highlights the far-reaching and not necessarily positive implications that a maximisation of the centralisation and aggregation possibilities under Directive 2014/24 could have, and proposes that strict competition law enforcement will be necessary to avoid undesired consequences. Some suggestions for further research are provided by way of conclusions.

The full paper is available for download on SSRN. Its full citation is:

Sánchez Graells, Albert and Herrera Anchustegui, Ignacio, Impact of Public Procurement Aggregation on Competition. Risks, Rationale and Justification for the Rules in Directive 2014/24 (December 5, 2014). University of Leicester School of Law Research Paper No. 14-35. Available at SSRN:http://ssrn.com/abstract=2534496.

This post was originally posted on Albert Sánchez Graells’ blog “How to Crack a Nut“ at http://howtocrackanut.blogspot.no/2014/12/paper-on-centralisation-of-procurement.html.