Public Procurement Law and Health care: From Theory to Practice. Research Paper in Law, 2/2010

From the Introduction. This contribution will focus on the core question if, how and to what extent the EU procurement rules and principles (may) affect the national health care systems. We start our analysis by summarizing the applicable EU public procurement legislation, principles and soft law and its exact scope in relation to health care. (section 2). Subsequently, we turn to the parties in a contract, subject to procurement rules in the field of health care, addressing both the definition of contracting authorities and relevant case law (section 3). This will then lead to an analysis of possible justifications for not holding a tender procedure in the field of health care (section 4). Finally, we illustrate the impact of EU public procurement rules on health care by analysing a Dutch case study, in which the question whether public hospitals in the Netherlands qualify as contracting authorities in terms of the Public Sector Directive stood central (section 5). Our conclusions will follow in section 6.

The Judicial Dimension of the European Neighbourhood Policy. EU Diplomacy Paper 08/2013, November 2013

In this paper, the expression “neighbourhood policy” of the European Union (EU) is understood in a broad way which includes the members of the European Free Trade Association (EFTA) contracting parties to the European Economic Area (EEA), the EFTA State Switzerland, candidate states, the countries of the European Neighbour-hood Policy (ENP), and Russia. The European Court of Justice (ECJ) is the centre of gravity in the judicial dimension of this policy. The innermost circle of integration after the EU itself comprises the EFTA States who are party to the European Economic Area. With the EFTA Court, they have their own common court. The existence of two courts – the ECJ and the EFTA Court – raises the question of homogeneity of the case law. The EEA homogeneity rules resemble the ones of the Lugano Convention. The EFTA Court is basically obliged to follow or take into account relevant ECJ case law. But even if the ECJ has gone first, there may be constellations where the EFTA Court comes to the conclusion that it must go its own way. Such constellations may be given if there is new scientific evidence, if the ECJ has left certain questions open, where there is relevant case law of the European Court of Human Rights or where, in light of the specific circumstances of the case, there is room for “creative homogeneity”. However, in the majority of its cases the EFTA Court is faced with novel legal questions. In such cases, the ECJ, its Advocates General and the Court of First Instance make reference to the EFTA Court’s case law. The question may be posed whether the EEA could serve as a model for other regional associations. For the ENP states, candidate States and Russia this is hard to imagine. Their courts will to varying degrees look to the ECJ when giving interpretation to the relevant agreements. The Swiss Government is – at least for the time being – unwilling to make a second attempt to join the EEA. The European Commission has therefore proposed to the Swiss to dock their sectoral agreements with the EU to the institutions of the EFTA pillar, the EFTA Surveillance Authority (ESA) and the EFTA Court. Switzerland would then negotiate the right to nominate a member of the ESA College and of the EFTA Court. The Swiss Government has, however, opted for another model. Swiss courts would continue to look to the ECJ, as they did in the past, and conflicts should also in the future be resolved by diplomatic means. But the ECJ would play a decisive role in dispute settlement. It would, upon unilateral request of one side, give an “authoritative” interpretation of EU law as incorporated into the relevant bilateral agreement. In a “Non-Paper” which was drafted by the chief negotiators, the interpretations of the ECJ are even characterised as binding. The decision-making power would, however, remain with the Joint Committees where Switzerland could say no. The Swiss Government assumes that after a negative decision by the ECJ it would be able to negotiate a compromise solution with the Commission without the ECJ being able to express itself on the outcome. The Government has therefore not tried to emphasise that the ECJ would not be a foreign court. Whether the ECJ would accept its intended role, is an open question. And if it would, the Swiss Government would have to explain to its voters that Switzerland retains the freedom to disregard such a binding decision and that for this reason the ECJ is not only no foreign court, but no adjudicating court at all.

New market conditions and "exit strategies" for the German arms industry. OSW Commentary No. 130, 12.03.2014

Due to changing internal and external conditions, the German arms industry is facing serious challenges as are its counterparts across Europe. The arms sales market in Germany is contracting – orders from the Bundeswehr are slowing down and the Federal Ministry of Defence is planning to change the way it cooperates with German arms producers. In addition, member states of NATO and the EU, major customers of German arms manufacturers, are reducing their defence spending, which will spell a fall in their orders for new armament and military equipment. In response to the new circumstances, the German arms industry is beginning to organise itself and increase its lobbying efforts in Berlin and, with the support of the federal government, it has been implementing specific measures in several areas. German companies are interested in securing new markets outside NATO and the EU and are also exploring opportunities for mergers and joint ventures with other German and foreign companies, and are seeking to create more conducive conditions for business on the EU and NATO markets.

Closing the gap? Military co-operation from the Baltic Sea to the Black Sea. OSW Report, December 2012

The contracting defence budgets in Europe, the difficulties in developing the EU’s security policy, NATO's transformation, the reorientation of US security policy and the problems experienced by European defence industries – all together have in recent years created an increased interest in political, military and military-technological co-operation in Europe.It has manifested itself in concepts of closer co-operation within NATO and the EU (smart defence and pooling&sharing), bilateral and multilateral initiatives outside the structures of NATO and the EU (such as the Nordic Defence Co-operation or the Franco-British co-operation) and debates about the prerequisites, principles and objectives of bilateral, multilateral and regional security and defence co-operation. The present report aims to analyse the potential for security and defence co-operation among selected countries in the area between the Baltic Sea and the Black Sea, i.e. the Nordic states (Denmark, Finland, Norway and Sweden), the Baltic states (Lithuania Latvia and Estonia), Poland's partners in the Visegrad Group (the Czech Republic, Hungary and Slovakia) as well as Romania and Bulgaria. The authors were guided by the assumption that those states are Poland's natural partners for closer regional military co-operation. It may complement ‘the Western’ direction of Poland's security and defence policy, i.e. relations with the partners from the Weimar Triangle and the US. Its goal is not to replace the existing security structures but rather to strengthen military capabilities in the region within NATO and the EU.