Mandatory clauses in the Public Procurement contract 255
full account of all their provisions; rather, we highlighted some important contract
clauses as key topics in public procurement procedure. We did an analysis of the
necessity to include in the contract some clauses which could help the contracting
authority in the management of it, and to which the interested parties should refer
to if they decide to start a career in public procurement. Public procurement is a
strategic tool for public sector authorities and consequently for the public interest.
Therefore, is in the public sector interest and the wider public to ensure the right
leadership and technical expertise to deal with the public procurements process.
The package of the Directives on public procurement have thereabouts similar
provisions on the contract clauses, moreover we used the case law from all of the EU
provisions in the field. The Directives provided to contracting authorities the
possibility to run procurements faster, with less red tape, and more focused on getting
the right tenderer. Even so, the lack of legal technicity in procurement could be fatal
for the entire process and a new procedure it might be necessary to commence.
Beyond our hypothesis we managed to demonstrate the necessity to distinguish
between mandatory and specific clauses, even if in the article we did not revise the
contract’s specific clauses because we considered that they should be established
by the contracting authority, based on their needs and on the public interest which
they represents. We also consider auspicious the decision of the European legislator
to do not include restrictive provisions about them. But this does not mean the
contracting authorities are legally free to establish clauses about any aspect of goods,
services and works. For example, they have to subside any procurement decision
to the principle of non-discrimination on ground of nationality, the principle of
equal treatment of tenderers and the obligation of transparency (see, to that effect,
C-454/06 pressetext Nachrichtenagentur, paraghraph 32; Case C-275/98 Unitron
Scandinavia15, paragraph 31; Case C-324/98 Telaustria and Telefonadress16,
paragraphs 60 and 61; and Case C-496/99 P Commission v CAS Succhi di Frutta17,
paragraphs 108 and 109). Moreover, for a sustainable environment certain limits
are established e.g. whether or not to take environmental considerations into
account for choosing the economically most advantageous tender overall and
include it as specific clause in the contract was addressed by the CJEU in the Case
15 Case C-275/98 Unitron Scandinavia A/S, 3-S A/S, Danske Svineproducenters serviceselskab,
and Ministeriet for Fødevarer, Landbrug og Fiskeri vailable at http://curia.europa.eu/juris/document/
id=665566 retrieved on December 15, 2017.
16 Case C-324/98 Telaustria Verlags GmbH, Telefonadress GmbH and Telekom Austria AG,
formerly Post & Telekom Austria AG, joined party: Herold Business Data AG available at
t&dir=&occ=first&part=1&cid=665823 retrieved on December 15, 2017.
17 Case C-496/99 P Commission of the European Communities and CAS Succhi di Frutta SpA,
established in Castagnaro (Italy), appeal against the judgment of the Court of First Instance of the
European Communities (Second Chamber) in Joined Cases T-191/96 and T-106/97 CAS Succhi di
Frutta v Commission  ECR II-3181 available at http://curia.europa.eu/juris/showPdf.jsf?text=
on December 15, 2017.