L'obligation de mise en concurrence et ses limites en droit européen ; The obligation to call for competition and its limits under European law

Although various pieces of European secondary law law use the terms "mise en concurrence" ("calling for competition" or "competitive tendering procedure") they provide no definition of the expression "obligation de mise en concurrence" ("obligation to call for competition"). At the very beginning, the author therefore defines what is meant thereby in his thesis, i.e. "a more or less formalized action which a public or a private person has to follow in order to provoke a competition or a contest between potentially interested persons that perform an economic activity, in order to grant an individual advantage to one or several of them". The first part of the work deals with the regime of competitive tendering of the public procurement directives which the Court of Justice has considered "as a whole" to be the "core" of European law on public contracts. First, this part examins the development of the public procurement directives from 1971 on. The author shows that the puzzling evolution of the personal scope of the public procurement directives is guided by the personal scope of European primary law. While considering the remedies directives, the author examines to what extent they introduce requirements beyond the principle of effective judicial protection. While some of their requirements obviously do so, the remedies directives however remain very far from standardizing the means of redress at national level. Due to the member States' judicial autonomy, the compelling force of EU primary law differs from one member State to another. The same applies within the scope of the remedies directives as they let the member States a large degree of autonomy. The author then turns to examine the contribution of the procurement directives 2004/17/CE, 2004/18/CE and 2009/81/CE, their scope of application, as well as the concepts of public works concession and service concession. Various other questions are dealt with in the first part, such as the use of functional interpretation, the power of the European legislator to ...