En analys av likabehandlingsprincipen enligt Lagen om offentlig upphandling

Sammanfattning: The aim of this thesis is to clarify the purpose of equal treatment. Furthermore the thesis intents to shed light on what the courts affirm or declare when they determine what is in compliance with the principle of equal treatment. In addition to this the thesis will also analyse whether or not a framework agreement can be combined according to LOU 5th chapter 6 § and LOU 5th chapter 7 §. The central legal framework of public procurement is the law of Public Procurement Act (2007:1091), LOU. LOU is based upon EU-directives and its purpose is to give every party of the procurement procedure equal treatment. Furthermore the Public Procuremnet procedure is intended to benefit from the competition in the market. Public Procurement in Sweden amounts to 400 billion Swedish krona on a yearly basis. It is very important that every supplier within public procurement is offered equal treatment. For example, the invitation of tender may not be phrased in a way that puts one supplier in a different position than the rest of the suppliers. The principle of equal treatment says that equal cases can not be treated differently and different cases can not be treated equal, if not motivated properly. The meaning of the principle of equal treatment is that every company should have the same right and that all invitations of tender get the same treatment. This thesis essentially concern three court cases. The courts have, in all three cases, argued in various ways but drawn the same conclusion, which was that the buyer had omitted the principle of equal treatment. I base my conclusions regarding the possibility for a buyer, in a public procurement concerning a framework agreement, to combine an assignment according to LOU 5th chapter 6 § and LOU 5th chapter 7 § upon the Swedish Competition Authority’s statement in the cases 3344-09 and 3345-09. The Swedish Competition Authority thought that the structure of the agreement violated LOU and EC-law. Furthermore they found that the buyers framework agreement did not fulfil the requirements of equal treatment. In my opinion, which correspond with the Swedish Competition Authority’s judgement, the buyer has omitted the principle of equal treatment since it is not possible to combine an assignment according LOU 5th chapter 6 § och LOU 5th chapter 7 §.