Proportionalitetsprincipen : En studie av dess inverkan i LOU

• Main Authors: Björk, Johan, Johansson, Carina
• Format: Others
• Language: Swedish
• Published: Södertörns högskola, Institutionen för samhällsvetenskaper 2013
• Subjects: Proportionalitetsprincipen; offentlig upphandling; LOU
• Online Access: http://urn.kb.se/resolve?urn=urn:nbn:se:sh:diva-21582

The principle of proportionality is considered one of the most important contemporary legal principles on which it intends to protect individual citizens against disproportionate action by the authorities. This aroused our interest prior to this study. The essay reveals how such behavior might look like and how courts have chosen to adjudicate in cases where the individual has been discriminated against or subjected to unreasonable demands in public procurement. That section of the law that were current throughout all court cases are Public Procurement Act (2007:1097) LOU. That which we have seen in every court case is that the applicant has not received a proper fair chance when the requirements of the contract often been asked in a way that either exclude the smaller applicant company or rule out various potential applicants parties due to excessive and sometimes unnecessary requirements. The consistently demonstrated in the study of court cases is that the authorities in all ten cases have had problems with necessity assessment of the claims shall be made, however, no authority in these cases had any confusions about whether it was appropriate for attaining the objective pursued. Another important discovery along the way has been assessed according to the constituent elements of the Public Procurement Act has been interpreted somewhat differently by different courts. Which may give a distorted picture of the courts positions in just the proportionality assessment. It could even be seen as a lack of legal certainty, the principle of proportionality is not firmly established through the codification of the current Administration Act but instead occurs scattered over different regions of justice. Study also showed that courts only rely on European law in a few cases despite principle of proportionality strong roots in Europe.