Willem Andries Janssen

Regulating the Pre-Procurement Phase: Context and Perspectives

This contribution considers the legal context and perspectives of regulating the pre-procurement phase in relation to public service delivery. The pre-procurement phase encompasses the democratic decision-making phase, in which a public authority decides to favor either internal or external performance of a public service. At this point in time, these authorities can choose freely between different modes of service performance. This discretion allows them to either internalize public service delivery by carrying it out themselves, possibly in collaboration with other public authorities, or to externalize the delivery of a public service (or to use the common EU terminology; service of general interest (SGI)) by approaching a third party. The law, by facilitating this freedom, appears to leave open undesired possibilities of inefficient and ineffective public service delivery. This contribution considers the consequences of this freedom in four Dutch markets. Consequently, it proposes a more coherent approach towards the application of such legal exemptions.