Avslutande av upphandlade kontrakt - Implementeringen av artikel 73 i direktiv 2014/24/EU i svensk rätt

Sammanfattning: Public procurement law is often described as part civil law and part public law. The public procurement regulation has despite this traditionally been viewed as primarily regulating the procedure of public procurement, and thus without any influence on national contract law. The contract law has thereby been described as a sacred cow, outside the reach of public procurement regulation. Following the regulation of termination of contracts in directive 2014/24/EU, the question regarding the mutual influence of the respective jurisprudence is put to the test. The purpose of this paper is thus to determine whether the Swedish implementation of article 73 in directive 2014/24/EU fulfills the requirements of a possibility for termination of contract for a contracting authority. As a part of this, the correlation between Swedish contract law and the public procurement regulation is reviewed. The paper shows that the opinion of the independence of contract law in regards to public procurement is still upheld in Swedish legislative history. The primary development of public procurement regulations is however showing that public procurement law is encompassing more and more of the public contract. The paper also shows that the implementation of article 73 is flawed, which can be seen in the fact that the translation errors in the Swedish version of the directive is carried over to Swedish legislation. The legislation ultimately makes the courts responsible for securing the possibilities for a contracting authority to terminate a contract. Swedish contract law offers some possibilities to terminate a contract, but the contracting authority will primarily be responsible for regulating the subject in their contract. The contracting authority might, despite this, be liable to pay substantial damages. As the legislator has chosen to leave the matter to the courts to decide, there is a need for the courts to consider the requirements of directive 2014/24/EU. There is a possibility that there is a need for the Swedish contract law to be interpreted in the light of the EU law. This might be hindered by the strict separation of public procurement law and contract law that is currently advocated. The paper presents a number of conclusions, one being that there is great advantages to abandoning this separation and instead acknowledge the mutual influence that is apparent. Such a view on the borderland between contract law and public procurement law would ensure that Swedish law fulfills the requirements of directive 2014/24/EU.