Summary. Object of this thesis was to analyse the right to change the contract due to unforeseen circumstances by the European Union law and by the draft Estonian Public Procurement Act. Author analyses criteria’s, what justify the contract modification due unforeseen circumstances. For the assessment of the admissibility of modifications needs to assess the impact of the amendment in the light of the general principles of public procurement. The new procurement directive do not bring significant changes - procurer must follow the principles of equal treatment of tenderers and transparency of procurement process and other principles enshrined in the Treaty of the EU. It is prohibited to prefer any provider to ensure free movement of goods and services and the freedom of establishment. By the ECJ case law, only a significant change of contract terms requires a new contract award procedure. Previous lawful award procedure may default by the way of amendment of the contract. That’s why the performance contract must follow the same terms that were set out in the tender documents. The change considered an important if the implementation of contract significantly differs from the initial terms of tender. As by ECJ case law only major changes require new tender procedure is crucial assessment of the significance of the change. The current position has been changed, that the modification on contract terms is not permissible, even if the price advantage as the result on new tender process does not justify his spending’s. Changes with values below insubstantial rates will typically not be of interest to providers from other Member States, therefore does not distort competition. Contracting authorities can be faced with external circumstances that they could not foresee when they awarded the contract, in particular when the performance of the contract covers a long period. It can be expected, that the change is not significant, if the need for contract change has been caused by external circumstances, which the contracting authority could not foresee or had no influence. It does not apply to the situation where the contracting authority changes its mind as regards the characteristics of products or services, or have not had enough foresight drafting tenders specifications. Unforeseen circumstances meant the circumstances, which the contracting authority could not foresee, despite careful preparatory work. In this case, a certain degree of flexibility is needed to adapt the co...
Summary. 1. As a result of this analysis, it can be concluded that the requirements for the intended use of the agricultural and forest land are mostly determined by county-wide spatial plans and/or comprehensive plans. In Estonia, the purpose for the national spatial plan, county-wide spatial plan and comprehensive plan is, among others, to determine the valuable agricultural land as well as establishing general (protective) conditions and terms of service for the preservation of such lands.
Summary. (1) The EFTA Surveillance Authority (‘ESA’) wishes to inform Norway that, having preliminarily assessed the measures covered by complaints relating to Vygruppen AS and its subsidiary, it has doubts as to whether the measures constitute existing aid and, in case the measures were considered new aid, as to whether the measures are compatible with the functioning of the EEA Agreement. ESA has therefore decided to open a formal investigation procedure pursuant to Articles 4(4) and 13 of Part II of Protocol 3 to the Surveillance and Court Agreement (‘Protocol 3’). This decision is based on the following considerations.
Summary. Estonia is currently in the process of adopting a new Public Procurement Act (hereinafter PPA). One of the many novel regulations contained in it is the right of a contracting authority to unilaterally terminate a valid procurement contract if it has been subject to an illegal modification. The respective right derives from article 73(a) of the directive 2014/24/EU (hereinafter the public procurement directive) and will be transposed with section 124 subsection 1 clause 1 of the PPA. There are a number of issues related to this novel right of the contracting authority. One of the problems is that the wording of the right in the PPA requires a prior illegal modification of the procurement contract. However, according to the explanatory memorandum to the PPA, the contracting authority may terminate the procurement contract when the parties are seeking to change the contract illegally due to the respective proposal of the contractor or upon a mutual understanding of the parties. Therefore there is a serious vagueness of the actual aim and substance with regard to the right in question. Secondly, there seems to be an obvious conflict between this unilateral right and the principle of good faith. Pursuant to the wording of the respective provision, the contracting authority is only eligible to exercise the right to terminate the procurement contract after having acted wrongfully. The wrongful conduct of the contracting authority being the consent to modify the contract illegally. A procurement contract is essentially a private law contract restricted by public procurement law. In private law one can decide whether to terminate a contract or not at its full discretion without any major limitations. Contracting authorities on the other hand are public entities and should therefore adopt a decision regarding termination in accordance with the principle of proportionality. In light of the described issues the aim of this thesis was to determine how the provision regulating the unilateral termination of a procurement contract should be applied in Estonia. The author sought to find out the conditions which have to be met in order to exercise the provision in question. The author analysed the regulation on modifying procurement contracts during their term. The European Court of Justice (hereinafter ECJ) has established a general rule according to which substantial modifications to a procurement contract are not allowed. The amendment of a procurement contract is unacc...