"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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- 2015 IX Abstract
- 2015 XI Acknowledgement
- 2015 XII INTRODUCTION I The objectives and scope of the study
- 2015 XIV II The structure
- Chapter I is entitled: “Public procurement process, its role and importance”
- Chapter II is titled “History and progress of the public procurement system in Albania and the European Union”
Bibliography .................................................................................................................. 275 Books ............................................................................................................................ 275 Case Law ...................................................................................................................... 277 Papers ........................................................................................................................... 285 Studies .......................................................................................................................... 286 Reports ......................................................................................................................... 287 Legislation .................................................................................................................... 288 Electronic Resources .................................................................................................... 292 Impact of European Union public procurement legislation on the Albanian public procurement system 2015 IX Abstract Public procurement still remains a relatively new concept in Albania nowadays. Given the commitments taken with the purpose of the entry into the European Union, Albania has begun the process of integration in order to achieve the European Union standards in the public procurement system. The integration process in the public procurement field means the approximation of the public procurement law and through it, the entire public procurement system with the corresponding EU Directives. In this context, the analysis of relevant issues, such as the public procurement, becomes important. Certainly, approximation cannot be “rigid”, but on the contrary, it should take into consideration the actual context in the country. The analysis of the actual situation of the public procurement system in Albania, its comparison with the procurement system provided for by the EU Directives, as well as the necessary improvements for achieving the EU standards, gain particular relevance. The overall objective of this thesis is to analyze the approximation process of the public procurement legislation in Albania with the corresponding EU Directive(s), and to answer the question: which is the best approach to be followed for this purpose? This objective is achieved through the analysis and comparison of the procurement systems in Albania and in the European Union. Key words: public procurement, Albania, European Union, approximation, integration process. Abstrakt Prokurimi publik mbetet ende një koncept relativisht i ri në ditët e sotme, në Shqipëri. Duke patur parasysh angazhimet e marra me qëllim aderimin në Bashkimin Evropian, Shqipëria ka filluar procesin e integrimit në arritjen e standardeve të Bashkimit Evropian, për sistemin e prokurimit publik. Procesi i integrimit në fushën e prokurimit publik do të thotë përafrim i ligjit të prokurimeve dhe, nëpërmjet tij, i të gjithë sistemit të prokurimit publik me direktivat përkatëse të Bashkimit Evropian, në këtë fushë . Në këtë kontekst, analiza e çështjeve konkrete, sikurse është prokurimi publik, bëhet e rëndësishme. Pa dyshim, përafrimi nuk mund të jetë “i ngurtë”, por, përkundrazi, duhet të marrë në konsideratë kontekstin aktual në vend. Analizimi i situatës aktuale të sistemit të prokurimit publik në Shqipëri, krahasimi i tij me parashikimet e Direktivave të BE, si dhe analizimi i përmirësimeve të nevojshme për arritjen e standardeve të BE, fitojnë një rëndësi të veçantë. Objektivi i përgjithshëm i kësaj teze është të analizojë procesin e përafrimit të legjislacionit për prokurimin publik në Shqipëri me Direktivat korresponduese të BE, si Impact of European Union public procurement legislation on the Albanian public procurement system 2015 X dhe t’i japë përgjigje pyetjes: cila është përqasja më e mirë që duhet ndjekur për këtë qëllim? Ky objektiv bëhet i mundur nëpërmjet analizës dhe krahasimit të sistemeve të prokurimeve, në Shqipëri dhe në Bashkimin Evropian. Fjalë kyçe: prokurim publik, Shqipëri, Bashkimi Evropian, përafrim, procesi i integrimit. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XI Acknowledgement When I first decided to do this study, I was afraid that I could not realize it. I have to say that it was not that easy, but now that I finalized it, I am grateful to a lot of people, who directly or indirectly have helped me to come to an end. First, I would like to show my gratitude to my two supervisors, Professor Roberto Caranta from the Law Department at Turin University and Professor Dr. Arta Mandro from the Public Rights Department at Tirana University, who have led me during this exercise, providing advice, insight and expertise that greatly improved my study and shaped it in the form it is now. Another big gratitude goes to Professor Martin Trybus, Professor of European Law and Policy at Birmingham University, for very helpful comments and advice that increased the quality of my study. As I had to realize this study on a part time basis, while I was working as the Director of the Legal and Monitoring Directory at the Public Procurement Agency, it has been a challenge to handle them both, at the same time. In this case, I would like to thank all my colleagues and my friends, who had to hear every day about my study, sharing thoughts with them, and being comprehensible that I needed to dedicate some time to my research work. Among my colleagues, I would like to thank particularly Enkeleida, for being one of the reviewers of my study and providing some helpful advice. I also want to thank Ador for taking care of the editing of the English language originally used for the preparation of the study. Special thanks go to my lovely husband, for being the first reviewing my work, commenting and advising on it. Apart from this, he deserves my gratitude for encouraging me all the time during the course of this study and caring about our two lovely children, Kres and Tea, when I was not at home and had to work for the study. Last, but not least, I am immensely grateful to my big family, my parents and my parents in law, my sisters and my brother and as well our nanny, for supporting me in hundreds visible and invisible ways, during these last years I had to work on this study. In conclusion, I would like to emphasize that all the views expressed here are my personal opinions and can in no way be taken to reflect the opinion or imply the position of anybody advising me on the study. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XII INTRODUCTION I The objectives and scope of the study Political changes in Albania after the ’90 were inevitably accompanied by radical changes of the economic system. The first changes in this context were the permission of the private entrepreunership and the opening to the market economy. These changes impacted not only the private law, but the public law as well. Private enterpreunership is closely related to public procurement, a term not known in Albania up to that time. With the opening to a market economy based on free competition, it became necessary to establish the legal and institutional framework for the regulation and implementation of the public procurement system. Since its beginnings and up to now, the system has been subject to several changes and improvements. Given the commitments undertaken with the purpose of the entry into the European Union, Albania has started the process of integration, in order to achieve the standards of the European Union. Albania has signed and is implementing the Stabilization and Association Agreement, and on that basis it should, among other things, work for the approximation of its legislation and legal policies with those of the EU. Albania’s commitments for the approximation of its legislation with the EU legislation refer to the public procurement as well. The integration process in the public procurement field means the approximation of public procurement law and through it, the entire public procurement system, with the corresponding EU Directives. In this context, the analysis of relevant issues, such as public procurement, becomes important. Certainly approximation cannot be “rigid”, but to the contrary it should take into consideration the actual context in the country. The analysis of the actual situation of public procurement system in Albania, its comparison with the procurement system provided for by the EU Directives, as well as the necessary improvements for achieving the EU standards, gain a particular relevance. What is required in the field of public procurement in the frame of the Stabilization and Association Agreement, namely in articles 70 and 74, and in the frame of the Interim Agreement, namely in article 40, consists mainly in the approximation of the legal framework with the acquis communautaire, increase of transparency and elimination of discrimination, encouragement of participation in public procurement procedures and increase of competitiveness. The strengthening of the administrative and institutional capacities, in function of the better implementation of public procurement legislation, is another priority of the European Partnership Document, which goes for the fulfilment of the commitments in the frame of the Stabilization and Association Agreement. This process has a certain time frame and is planned in the National Plan for European Integration. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XIII The first incentive for conducting a study on “The impact of EU Public Procurement Legislation on the Albanian Public Procurement System” and transforming it into a thesis for receiving the “PhD” grade came from the many challenges I have come along in my everyday work as Director of Legal and Monitoring Department in the Public Procurement Agency, which focuses on the establishment of an efficient national procurement system. Considering that besides the internal factors, the establishment of such a procurement system is greatly impacted by the obligation of the Albanian Government to fully approximate the legislation in this field with the corresponding EU Directives, the challenge of preserving an equilibrium between the formal approximation and a special regulation, which suits and manages at the same time a given context as it is the Albanian one has been quite big in the last decade. In this situation, I engaged in analyzing both systems, and based on my experience, particularly on the problems faced in the practical application of the Albanian legislation and the typology of such problems, I provide a position concerning the approach for the approximation of the public procurement legislation and recommendations, which could help facilitate this process by making it less formal and more effective. The main objectives of the present study relate to the analysis of the Albanian public procurement system, the level of impact of the respective EU legislation in this system, the commitments of Albania in the frame of the integration process in this field and what is to be understood with the requirement of “full approximation” of the Albanian public procurement legislation with the respective EU legislation. Through these objectives, the study aims at analysing and discussing the feasibility of commitments of one party and the expectations of the other party, concerning the full approximation of a national law, applicable in a given context (such as Albania is), with an EU Directive, which aims at regulating the performance of certain states in a certain field, as public procurement is, with the purpose of creating of a common market. Hence, the states addressed by the respective acts are in different phases of development, and therefore the context in which these acts will be applied is totally different. At the end, the study will come with conclusions concerning the approach followed in the process of approximation of the public procurement legislation with the respective EU Directives, as well as with recommendations on the steps to be taken for the achievement of maximal efficiency of the process by both parties. I would like to emphasise that generally this is a theoretical study, but it is also combined with some practical aspects of public procurement. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XIV II The structure This work studies the Albanian public procurement system, its regulation in the Albanian legislation as well as the regulation of public procurement in the respective EU Directives. The study focuses only on the procedural aspects of the procurement process, thus considering only the similarities and differencies with the Directive of Procurement in the Public Sector 1 . Taking into account the fact that during the preparation of this study, the EU approved a new Directive for the public procurement in the Public Sector, such new Directive was included in the study, with the aim to complete as much as possible the presentation and analysis of the regulatory framework and the fisibility of the new obligations arising for Albania. The study includes an analysis of the similarities of the legal provisions and the level of approximation of the Albanian legislation with the respective EU Directives. The analysis is conducted by continuously posing the question and discussion on the possibility of implementation of certain provisions of the Directives, including those cases when the domestic legislation provides for a formal provision, is it effectively implementable, or is it being applied in the same context as established by the Directive? In this spirit, the Study poses for discussion the question regarding the level of fulfillment of the commitment of the Albanian Government in the frame of the Stabilization and Association Agreement for adapting the legislation, and if a full approximation of the legislation in the actual status of Albania as a non-Member State and in its actual political, economic and social context is possible and obligatory. Apart from the Introduction, the Study is divided into six Chapters: five chapters consist in an analytical representation of the issue while the sixth chapter includes conclusions based on the analysis and discussions and also provides recommendations concerning the efficency of the process. Chapter I is entitled: “Public procurement process, its role and importance” This chapter provides a descriptive frame of a public procurement system in general and of the procurement process itself in particular. Initially in this chapter, the role of public procurement as the mechanism is analysed, which aims at a good administration of public funds in a given country. Further on, the three phases of the procurement process are analyzed (the identification of needs and the procurement planning stage, the competition stage and the implementation stage); the impact they have on each other and on the achievement of the final goal of the process. Further on, the analysis is extended to some economic aspects of the procurement process and their impact in shaping the process. There follows a deeper analysis of the public procurement process elements, the application area and respective exclusions. An analysis of the “contracting 1 The study does not deal with issues covered by the Utility Sector Directive 2004/17/EC and the Public Sector Remedies Directive 89/665/EEC, as amended by Directive 2007/66/EC. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XV authority” concept is presented in the context of this legislation, of the “economic operator”, “public funds”, “public procurement contracts”, and exclusions from these rules. The analysis is conducted considering the spirit of the legal provisions and the case law of the Court of Justice of the European Union (hereafter referred as CJEU). At the end of the chapter, the means and the goal of the public procurement process are taken in analysis, as well as the main internal and external factors impacting the regulation of a public procurement system. Chapter II is titled “History and progress of the public procurement system in Albania and the European Union” This chapter analyzes the progress of the public procurement system in Albania, its beginnings and developments up to date. An historical view of the Albanian procurement system aims at providing a fuller picture of the Albania’s experience in this field as well as to assess in this context the improvements made by the country and the improvements asked to be done. The chapter also presents an history of the EU public procurement system. The corresponding European legislation is presented in a comparative way and in function of the results aimed by this study. The European legislation is presented by focusing mainly into the Directives, their position in the European legislation hierarchy and the obligations for the Member States. The historical view serves to evidentiate the experience of the EU in public procurement and the path followed for achieving a system as the one provided for by the actual Directives. The analysis of the progress of both systems serves to evidentiate the differences, even in a timeframe, between them and the impact of such a fact in the actual approaches followed by each of them. Chapter III is titled “Public procurement process, rules according to the Albanian system; similarities and differences with the corresponding EU legislation” This is one of the most important chapters of the study, which analyzes in details the public procurement process according to the Albanian legislation and raises discussions on the similarities and differences with the respective regulation of this process by the EU Directives. Through the discussion, it is aimed at understanding the impact of the EU system in the Albanian system of public procurement and the real possibility to implement the provisions of the Directive in the domestic legislation. Basic elements of the procurement process are also analyzed in this chapter. So, this part of the study analyzes and discusses all the concepts that make up the skeleton of a procurement process. The definition of special rules for the management of public funds aims at minimizing the non-necessary costs on the state budget and the optimization of price and quality of the required good, service or work. Taking into consideration the main definition of public procurement and analyzing the elements of the public contract, it is understandable that concrete needs should be known to conduct a public procurement. To make these needs Impact of European Union public procurement legislation on the Albanian public procurement system Download 5.49 Kb. 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