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Illegal Direct Procurement in Finland

Opinnäytetyöt, Gradut ja muut tutkielmat

The Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC was implemented in Finland by the Act on Public Procurement and Concession Contracts (1397/2016, hereinafter “Procurement Act”) which entered into force on 1 January 2017. The most important obligation of the Procurement Act is the obligation to organise a competitive tendering. Failure to comply with this requirement without the grounds set out in the Procurement Act leads to an illegal direct procurement. The Procurement Acts list exhaustively the criteria for direct procurement as well as the situations in which it is not obligatory to organise a competitive tendering as the procurement does not fall within scope of the Procurement Act. These situations are always interpreted strictly, which is why it is likely that a procurement where a competitive tendering is not organised turns to be an illegal direct procurement. The European Court of Justice considers illegal direct procurement to be the most serious breach of European Union law in the in the field of public procurement.

This thesis does not approach the concept of illegal direct procurement by only using legal dogmatic but presents also empirical research in order to uncover what kind of procurements are in practical terms most often condemned to be illegal. For this purpose, the judgements of the Market Court of Finland from 2011–2018 related to direct procurement and to the obligation to organise a competitive tendering are examined.

Every action has consequences and the latter part of the thesis focuses on the risks resulting from making an illegal direct procurement. In the concluding chapter, some personal views on what kind of development can be expected and what kind of changes could be made to the legislation in the future are given.

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