Störande Standardavtal - Om standardavtals konkurrensbegränsande effekt vid upphandling av entreprenader

Sammanfattning: This paper examines whether the use of standard agreements within public procurement of contractors in Sweden constitutes a restriction of the freedom to provide services within EU, which is ensured through article 56 in the Treaty on the Functioning of the European Union. Contract-law is not regulated through law within Sweden but is instead regulated through standard agreements developed by an interest group. These standard agreements are, among other things, used in processes involving public procurement of contractors. Since these agreements are not used anywhere but in Sweden there is a concern that their usage has the effect of excluding contractors from other countries from providing contracts within Sweden. Therefore, the purpose of this study is to, based in EU-law methodology and case law from the EU-court, investigate whether the use of standard-agreements is to be considered a restriction of the freedom to provide services according to the judgement of the EU-court. The questions that are to be answered read as follows: 1. Should the usage of standard agreements within public procurement of contracts within Sweden be considered a restriction of the freedom to provide services within the EU? 2. Are there justificatory grounds that can justify the utilization of standard agreements within public procurement of contracts and their potential restriction of the free movement of services within the EU? In order to achieve this purpose and answer the posed questions this study bases itself in established case-law from the EU-court pertaining to the restrictions of the freedom to provide services as well as possible justificatory grounds for such restrictions. After that the study applies the same method of deduction as the EU-court utilizes in order to conclude whether a restriction infringes on article 56 or whether it is justified with regard to its purpose. The conclusion of this study is that the usage of standard agreements within public procurement of contracts should be considered an infringement of foreign contractors’ abilities to provide services and should therefore be prohibited according to EU-law. There are no justificatory grounds with enough potency to alter this interpretation.