De redelijk handelende aanbesteder: Over de wisselwerking tussen het Europees aanbestedingsrecht en het Nederlands verbintenissenrecht bij een aanbestedingsprocedure

Activity: PhD thesis ExaminationPhD thesis examination


SummaryTitle: The reasonable contracting authoritySubtitle: On the Interaction between EU Public Procurement Law and Dutch Law of Obligations in Tendering ProceduresThis study focuses on the interaction between EU public procurement law and Dutch law of obligations in EU-regulated tendering procedures. In a fair proportion of cases, public contracts are concluded after the successful completion of an EU tendering procedure. These tendering procedures are primarily governed by the provisions of EU procurement law. At the same time, tendering procedures in the Netherlands generally lead to the conclusion of a contract governed by private law. From this perspective it can be said that prior to the conclusion of such contract, parties participating in a tendering procedure find themselves in a bilateral pre-contractual relation with the contracting authority. As a further implication, this bilateral relationship is not only regulated by the provisions of EU public procurement law, but also by Dutch law of obligations. This research therefore departs from the assumption that it is unclear what rights and obligations can be derived from such relationship within the framework of an EU-regulated tendering procedure. All this leads to legal uncertainty on this point, hindering cross-border trade. This research aims to remove this legal uncertainty.The study’s central question is:Which role does Dutch law of obligations play in the bilateral relationship between a contracting authority organising an EU tendering procedure and a participant in said procedure? The most important conclusions that can be drawn from this study is that during the course of this thesis I have come to realise that also (or perhaps specifically) when a relationship prior to the conclusion of a contract is primarily governed by rules from a different field of law – in this case EU public procurement law – it is of vital importance, at least from a Dutch law perspective, to consider the standards of reasonableness and fairness when resolving any conflicts during this legal relationship. Only then can all relevant interests relating to the pre-contractual bilateral relationship between a contracting authority on the one hand and a single tenderer on the other be considered, not just the ones the EU public procurement law focusses on. As a consequence, a tenderer’s individual financial interests can also be taken into account during the resolution of these conflicts. The standards of reasonableness and fairness offer an opportunity to step away from the context of public procurement law, to consider what is at hand and which interest are at stake, and to consequently look to resolve the problem within the framework provided by EU public procurement law.
Period7 Sept 2021
ExamineeSophie Prent
Examination held at
Degree of RecognitionNational