en Juridica ajakiri 2025/6-7 http://www.juridica.ee/ http://www.juridica.ee/article.php?uri=2025_6-7_kas_iguslik_t_lge_v_i_poliitiline_kompromiss_sisetehingu_ja_hankijate_koost_regulatsiooni_l&lang=en Article 12 of Directive 2014/24/EU (hereinafter: Procurement Directive) provides for an exception whereby the contracting authority may enter into transactions with legal persons affiliated with the contracting authority; in other words, internal transactions without complying with the rules laid down in the Procurement Directive. As an exception, contracting authorities may also cooperate with each other under certain conditions in such a way that the cooperation is also formulated without complying with public procurement rules. Although the Procurement Directive sets out the grounds for applying the exemption for internal transactions and cooperation between contracting authorities, it leaves EU Member States with considerable discretion to apply the provisions in accordance with their local national legal systems and institutional characteristics. This article examines the legal and practical concerns surrounding the transposition of Article 12 of the Directive into national law, focusing on the principles of harmonisation. The article analyses different legislative approaches and their impact on the application of rules governing internal transactions and cooperation between contracting authorities. The focus is primarily on (a) the so-called copy-out method, i.e., situations where Member States have decided to transpose the Directive word for word, and (b) on so-called tailor-made solutions, where Member States have decided to impose additional conditions or restrictions in their national regulations. Special attention is paid to the phenomenon of gold-plating, which often occurs in the context of in-house transactions and cooperation between contracting authorities, i.e., situations where national law goes beyond that which is required by European Union legislation. 2025-10-21 11:51:03 Pilleriin Peedosk http://www.juridica.ee/article.php?uri=2025_6-7_avalik-_iguslike_konkursside_paralleelmaailm&lang=en Many people are aware of the existence of public procurement law. What many people may not be aware of is that a completely separate world of public law competition exists, although the State Assets Act and similar acts by local governments are undoubtedly of no surprise to experts. However, in the world of public resources, there is an obligation to organise competitions, which is not explicitly stated in the law. This other world has existed in Estonian law for at least two decades. Namely, nearly 20 years ago, the Supreme Court formulated a trend that could be called the obligation to follow appropriate procedures related to the use of public resources. When we refer to ‘competitions’ in the title, we are talking about the relevant procedures. This parallel world has received almost no attention in legal literature; in other words, this topic has not been systematically approached before. However, there are numerous issues to be resolved. What exactly is a public resource? Does a grant for the use of any public resource require a tender or some other appropriate procedure, or are there exceptions to this? Where does the obligation to conduct a competition (appropriate procedure) come from, and what purpose does it serve? What are the minimum requirements for the respective proceeding? In what respect is this similar to, for example, a grant for the use of assets in a decision-making process or an in-house transaction known from public procurements? This article seeks answers to these questions. 2025-10-21 12:00:32 Mario Sõrm, Carri Ginter, Mari Ann Simovart http://www.juridica.ee/article.php?uri=2025_6-7_riigihangete_roll_innovatsiooni_ja_avaandmete_poliitika_edendamisel&lang=en The article focuses on how public procurements can act as a catalyst for innovation, focusing more specifically on promoting the reuse of open data. The authors contend that public procurements constitute not only an important channel for stimulating demand-driven innovation but also a strategic policy instrument capable of promoting the objectives of open data policy. General policy recommendations often advise European Union Member States to leave intellectual property rights with contractors in order to promote innovation. The authors of this article do not share this point of view. The authors claim that the strategic acquisition of intellectual property rights by public authorities through public procurement is necessary to ensure access to and the reusability of data. The article is based on an analysis of European Union legal and policy documents. The study focuses on public procurement and open data directives, whose role in promoting innovation and managing public sector information is examined in conjunction with relevant European Union strategic documents and Commission guidelines in order to clarify the implementation of innovation-oriented procurement and open data strategies. In addition, the article relies upon an analysis of scientific literature in the fields of public procurement law, intellectual property law, innovation policy, and open data. 2025-10-21 12:11:21 Gerli Helene Gritsenko, Aleksei Kelli http://www.juridica.ee/article.php?uri=2025_6-7_aktuaalsed_igusk_simused_eesti_ja_leedu_kaitse-_ja_julgeolekuhangetes&lang=en Due to their historical experience and geopolitical location, both Estonia and Lithuania have had reason to be vigilant in matters of national security, although in practice, the development of defence capabilities has not always been consistent or flawless. In recent years, the international security situation has undergone very extensive and rapid changes, as a result of which Europe has begun to significantly strengthen its defence capabilities. Therefore, it is extremely important to ask whether the current body of rules governing public procurements is sufficiently flexible and effective to enable the rapid and efficient execution of procurements necessary for national defence, and what challenges are associated with their implementation. One of the central topics is the use of exceptions to public procurement law, which would allow for faster and more flexible action in defence procurements. To open the topic, the article presents the specific legal background of defence procurements and analyses legal issues that, in the authors’ opinion, have proven problematic in Estonian defence and security procurements. Since Lithuania, which operates in a geopolitical situation similar to that of Estonia and under the same European Union legal framework, has chosen legal solutions that differ from those of Estonia in some matters, these will also be presented for the sake of comparison. The necessity of legislative reforms is considered, and recommendations are made for resolving legal bottlenecks in light of existing legal norms. In a complex security situation, both Estonia and Lithuania have made the development of their domestic defence industries a priority. As a result, this article introduces Lithuania’s specific legal framework, which was created in recent years, specifically to support the development of the defence industry. 2025-10-21 12:15:10 Mari Ann Simovart, Deividas Soloveicik, Triin Väljaots http://www.juridica.ee/article.php?uri=2025_6-7_d_naamiline_hankes_steem_kui_riigihanke_vahend_iguslikud_v_imalused_ja_praktiline_reaalsus&lang=en Subsection 2 (1) of the Public Procurement Act provides that the purpose of the Act is to ensure the transparent, practical and economic use of the contracting authority’s funds, the equal treatment of persons, and the effective use of competition in public procurement. Thus, in addition to the objectives arising from the Public Procurement Directive, the primary objectives of the Public Procurement Act are the practical and economic use of national funds. In addition, out of the secondary or horizontal objectives, social considerations, as well as the implementation of innovation and of eco-friendly solutions, are taken into account when planning and carrying out public procurements (subsection 2 (2) of the Public Procurement Act). Public procurements are moving more broadly towards simplification. One of the simplification measures is precisely the public procurement instruments, one of which – the dynamic purchasing system – is the focus of this article. Pursuant to subsection 32 (1) of the Public Procurement Act, a ‘dynamic purchasing system’ means an electronic process for awarding public contracts, in which the economic operators who meet the selection criteria may be included at any time during the period of operation of the system, and the contracting authority or entity may award public contracts to the tenderers who have been included in the system in accordance with the rules provided by § 35 of the Public Procurement Act. The aim of this article is to map the nature of the dynamic purchasing system and its current usage activity, analyse the most important legal problems, and establish their essence. There is not much legal literature focusing on the dynamic purchasing system, and even less case law to help understand the ways in which this instrument of public procurement can be used lawfully. In addition to discussing the broader theory of the dynamic purchasing system, the article analyses two main legal problems. The first of these concerns the question of what can be procured based on a dynamic purchasing system, i.e., what is a common thing/public service/construction work. The second issue concerns the general nature of the contract, i.e., how precisely the technical specifications for the contracts to be awarded must be defined when creating a dynamic purchasing system. 2025-10-21 12:20:16 Merily Rool http://www.juridica.ee/article.php?uri=2025_6-7_t_ptingimuste_direktiivi_kohaldamine_hankelepingutele&lang=en Public procurement law and the rules of standard terms both have roots in European Union law. Estonia has also expanded the rules of standard terms to include contracts concluded in economic and professional activities, which is not required by European Union law. In judicial practice, it has been found in the case of procurement contracts that the rules of the Standard Terms and Conditions also apply. This raises a number of issues in the context of public procurement law and, if misused, could lead to an unacceptable change in the balance of obligations. At the same time, significant changes to a valid procurement contract are prohibited by the general principles and norms of public procurements. Therefore, the application of the regulation governing standard terms to public contracts causes, at least in theory, a normative conflict between the law of obligations and public procurement law: the removal of ‘unfair’ terms from a contract may lead to a substantial change in the procurement contract, and thus, to a violation of the principles of equal treatment and transparency. Ideally, expanding the scope of the Standard Terms Directive to procurement contracts should not lead to a conflict between the law of obligations and public procurement law. In the opinion of the authors, it is possible to apply the law in accordance with the prohibition on substantial changes to the procurement contract arising from public procurement directives. When such a moment of consideration occurs, it would be a mistake to view the procurement contract purely as a matter of civil law and forget the prohibition on significant changes that accompanies a public law contract. 2025-10-21 12:23:47 Carri Ginter, Mari Kelve-Liivsoo http://www.juridica.ee/article.php?uri=2025_6-7_kui_konkurentsi_igus_ja_riigihanke_igus_kohtuvad&lang=en Competition law and public procurement law serve similar purposes in the context of European Union law. This article is not an academic overview of whether and how European Union public procurement law and competition law have influenced each other and Member States ideologically, but focuses on the practical implications of competition law in the organisation of public procurements. In other words, what obligations and risks arising from competition law must contracting authorities take into account when organising public procurements, as well as tenderers when participating in them. The article focuses on the following questions: (a) whether and when joint bids are prohibited under competition law; (b) whether and how competition law or public procurement law restricts the participation of related undertakings in the same public procurement procedure; (c) how exclusion from a tender due to an agreement that restricts competition takes place; (d) what obligations the contracting authority has in preventing abuses of a dominant position, if, for example, the price of a tender submitted by a potential monopoly undertaking is suspiciously low. In the article, the authors fail to address some of the more classic points of contact between competition law and public procurement law, such as bid rigging. 2025-10-21 12:27:55 Mario Sõrm, Gerli Helene Gritsenko http://www.juridica.ee/article.php?uri=2025_6-7_hinna_muutmine_hankelepingus_lepingu-_riigiabi-_ja_riigihanke_iguslikud_aspektid_kommentaar&lang=en In practice, interpretation problems often arise in the performance of public contracts due to the complexity of the contractual terms and conditions. In addition, it may be necessary to amend the contract, which is often also preceded by an interpretation of such. Amending a valid procurement contract raises the possibility that the modification may be perceived as unlawful state aid. In their commentary, the authors discuss the possibility of changing the amount of remuneration (tariff) paid to the carrier during the term of a public regular service contract (hereinafter: regular service contract). As the price components of public regular service are constantly changing, large public transport sector purchasers often include an indexation mechanism in their regular service contracts, which also usually involves a cap on the cost per kilometre. In practice, 10–15 different indices are used. In the case of a long-term regular service contract, the application of the index may have a significant impact on the balance of rights and obligations between the parties. What are the limits of the contracting authority’s discretion when changing the amount of remuneration payable to the contractor performing a regular service contract concluded as a result of an open procedure? How should cost risks be distributed in the performance of a public service contract if the index of the public service contract or the threshold contained therein leads to a situation where the fee per route kilometre is reduced by a significantly greater extent than the carrier’s costs have decreased? The Supreme Court had to answer these questions in its judgment of 24 January 2024, in administrative case 3-21-958. 2025-10-21 12:31:15 Triin Kaurov, Vitali Šipilov http://www.juridica.ee/article.php?uri=2025_6-7_euroopa_inim_iguste_kohtu_otsus_asjades_uab_profarma_ja_uab_bona_diagnosis_vs_leedu_ehk_kui&lang=en The impact of the coronavirus pandemic continues to be felt in legal practice. Legal disputes following the outbreak of a global disease usually concern the substantial sums of money that the state was prepared to spend on protective measures, such as masks and vaccines, to safeguard the population during the crisis. The judgment of the European Court of Human Rights (ECHR) of 7 January 2025 in cases 46264/22 and 50184/22 (UAB Profarma and UAB Bona Diagnosis v. Lithuania) is part of the broader context of public procurements during the coronavirus pandemic and the disputes that have arisen from them. This judgment, which has received little attention from legal scholars to date, is worth taking a closer look at due to its broader implications for contracts concluded in economic and professional activities. Although the judgment concerns the rules of Lithuanian national public procurement law, this is a legal area that is also regulated at the level of European Union law. The ECHR judgment also signals the position of the Court of Human Rights on possible restrictions on the freedom to conduct business and the freedom of contract: According to the Court of Appeal of Lithuania, the freedom of contracting parties engaged in economic activity to set prices cannot disregard the social responsibility of undertakings for their property, i.e., assets. Essentially, the acquisition of property must be in line with the interests of society. The decision of the ECHR confirms that such an obligation (albeit domestic) may already extend to an undertaking at the moment of acquisition of future property, i.e., upon the conclusion of a contract under the law of obligations, and, therefore, such a situation may also fall within the (broad) scope of application of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 2025-10-21 12:35:29 Paloma Krõõt Tupay, Elit-Marlene Agu