Freedom to Amend a Public Procurement Contract in the Light of General Principles of Public Procurement

The legal regulation of public procurement in Estonia is traditionally divided into two parts: pre-contractual relations are subject to rules governing public law, in particular the Public Procurement Act and underlying European Union law, while the contract itself is upon entry into the contract a private law contract without special exceptions.

Yet a significant shift has taken place in European procurement law. The European Court of Justice has in its recent judgments in Pressetext and Commission vs. Germany reaffirmed the position that private law disputes relating to public procurement must be resolved in the light of the general principles of public procurement. Where a conflict arises, general principles of public procurement must have priority over private law norms. Consequently, the legal regulation of public procurement contracts is within the competence of the Member States, but the enactment and application of these rules must take into account the general principles of procurement provided for by the directives and the general principles arising from the Treaty on the Functioning of the European Union. Private law relationships relating to public procurement must also recognize that even at the national level, public procurement contracts involve a significant public interest (e.g. interest to avoid corruption) and that the interests of the parties to a contract may in some circumstances be subordinated to the public interest.

In this article the author examines the criteria by which freedom to amend a procurement contract and restrictions imposed by the public interest might be balanced in order to ensure compliance with the general principles of European public procurement.