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Sub-dimensional PUBLIC PROCUREMENT: between EU principles and gold plating. Dacian C. Dragos Center for Good Governance Studies Babes Bolyai University, Cluj Napoca , Romania. Contracts outside the EU directives: what relevance?. - PowerPoint PPT Presentation
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Sub-dimensional Sub-dimensional PUBLIC PROCUREMENT: PUBLIC PROCUREMENT: between EU principles between EU principles and gold platingand gold plating
Dacian C. DragosDacian C. DragosCenter for Good Governance StudiesCenter for Good Governance Studies
Babes Bolyai University, Babes Bolyai University, Cluj Napoca, RomaniaCluj Napoca, Romania
Contracts outside the EU Contracts outside the EU directives: what relevance?directives: what relevance?
80% of the procurement market – contracts not covered by the directives
10% of procedures are covered by the EU Directives
90% of procedures recorded nationally – below the EU thresholds
Values: 20% of the public expenditures covered by the EU Directives
ThresholdsThresholds THE WTO Government Procurement THE WTO Government Procurement
Agreement (SDR)Agreement (SDR) 2014 Directives (EUR)2014 Directives (EUR)
(a) EUR 5 186 000 for public works contracts;(a) EUR 5 186 000 for public works contracts; (b) EUR 134 000 public supply and service, central (b) EUR 134 000 public supply and service, central
authoritiesauthorities (c) EUR 207 000 public supply and service contracts, (c) EUR 207 000 public supply and service contracts,
sub-central authoritiessub-central authorities (d) EUR 750 000 public service contracts Annex XIV (d) EUR 750 000 public service contracts Annex XIV
Up until 2004 – full application of the Directive Up until 2004 – full application of the Directive - lowering the thresholds- lowering the thresholds
2014 onward – increasing the thresholds2014 onward – increasing the thresholds
ReasoningReasoning
Sub-dimensional - not enough cross Sub-dimensional - not enough cross border interestborder interest
Contracts above thresholds – majority Contracts above thresholds – majority of PP in the MSof PP in the MS
GPAGPA
Critique:Critique: The size of PPThe size of PP MS become the main actors in the MS become the main actors in the
integration of public markets, not the EUintegration of public markets, not the EU
Case law of the CJUECase law of the CJUE
Unitron ScandinaviaUnitron Scandinavia TelaustriaTelaustria Commission v. FranceCommission v. France Germany v. CommissionGermany v. Commission Commission v. ItalyCommission v. Italy ConameConame Bent Mousten VestergaardBent Mousten Vestergaard Parking BrixenParking Brixen
Case law (cont)Case law (cont)
Succhi di fruttaSucchi di frutta Evropaïki DynamikiEvropaïki Dynamiki Strong SegurançaStrong Segurança Medipac-Kazantzidis Medipac-Kazantzidis SECAP SECAP Commission v. IrelandCommission v. Ireland BelgacomBelgacom Comune di AnconaComune di Ancona
Soft law: the 2006 Soft law: the 2006 CommunicationCommunication
Synthesis of the jurisprudenceSynthesis of the jurisprudence Cross border interest test:Cross border interest test:
subject matter of the contract, subject matter of the contract, its estimated value, its estimated value, the size and structure of the the size and structure of the
particular market, particular market, commercial practices commercial practices the geographic location of the the geographic location of the
place of performanceplace of performance
EU principlesEU principles
Recital 1:Recital 1: free movement of goods, free movement of goods, freedom of establishment freedom of establishment freedom to provide services freedom to provide services
equal treatment, equal treatment, non-discrimination, non-discrimination, mutual recognition, mutual recognition, proportionality proportionality transparencytransparency
Equal treatmentEqual treatment
the obligation of transparency the principle of freedom to provide
services the principle of free competition
No new obligations
(Germany v. Commission)
Non-discriminationNon-discrimination
Non-discriminatory description Non-discriminatory description of the subject-matter of the of the subject-matter of the contract (Bent Mousten contract (Bent Mousten Vestergaard)Vestergaard)
Mutual recognitionMutual recognition
Non discrimination = equal Non discrimination = equal treatment?treatment?
EU institutionsEU institutions National courtsNational courts
ProportionalityProportionality
2006 Communication2006 Communication Time limitsTime limits
TransparencyTransparency Rules known in advanceRules known in advance Applied equallyApplied equally Sufficient timeSufficient time
Individual quotations? NoIndividual quotations? No ConameConame: some degree of transparency, : some degree of transparency,
unless very modest economic interestunless very modest economic interest
Member States experiencesMember States experiences
National jurisdictions - playground for National jurisdictions - playground for the principles of EU law. the principles of EU law.
Options: Options: extension of the rules of the Directives to extension of the rules of the Directives to
sub-dimensional procurement (either fully sub-dimensional procurement (either fully or partially), or partially),
the application of general public or private the application of general public or private law ruleslaw rules
OECD 2010OECD 2010 Majority of MS – sub-dimensional Majority of MS – sub-dimensional
procurement in same legislative procurement in same legislative actact
Sub-dimensional PP – Sub-dimensional PP – transparency, competitive, fair transparency, competitive, fair proceduresprocedures
Selected MS data 2012Selected MS data 2012
Gold plating Gold plating new EU entrants (2004 and 2007) new EU entrants (2004 and 2007)
(fear of corruption)(fear of corruption) France, Italy and Spain France, Italy and Spain
Germany, Denmark, UK – Germany, Denmark, UK – separate regimesseparate regimes
National procedures for sub-National procedures for sub-dimensional procurement - dimensional procurement - simplified. simplified. shorter time limits for submission shorter time limits for submission
of applications or tenders (further of applications or tenders (further shortened in case of electronic shortened in case of electronic submissions) submissions)
less demanding rules for less demanding rules for publication and selection of publication and selection of tenderers. tenderers.
Direct procurement Direct procurement
very modest economic interestvery modest economic interest national thresholds – between national thresholds – between
EUR 5000 and EUR 50 000 EUR 5000 and EUR 50 000 Spain - 50 000 works 18 000 services and Spain - 50 000 works 18 000 services and
supplies, France and Poland EUR 15 000, supplies, France and Poland EUR 15 000, Italy EUR 40 000, Romania EUR 100 000 Italy EUR 40 000, Romania EUR 100 000 works and EUR 30 000 services and works and EUR 30 000 services and supplies, Denmark EUR 67 000. supplies, Denmark EUR 67 000.
UK and Germany -no national threshold, UK and Germany -no national threshold, but devolved local authorities may but devolved local authorities may establish similar thresholdsestablish similar thresholds
RemediesRemedies
OECD study – majority - same OECD study – majority - same remediesremedies
Denmark, UK, Germany, Spain - Denmark, UK, Germany, Spain - different remedies regimesdifferent remedies regimes
Direct procurement - national Direct procurement - national rules of redressrules of redress
Final remarksFinal remarks
European Commission: direct European Commission: direct cross-border procurement has not cross-border procurement has not increased as much as was increased as much as was anticipatedanticipated
Even more true for sub-Even more true for sub-dimensional procurement dimensional procurement
2014 Directive: joint awarding of 2014 Directive: joint awarding of public contracts by contracting public contracts by contracting authorities from different Member authorities from different Member States (Recital 73)States (Recital 73)
Sub dimensional regimeSub dimensional regime
Case law CJUE Case law CJUE National practices – mainly gold National practices – mainly gold
plating. plating. Cross border interest test - rarely Cross border interest test - rarely
performed, performed, Remedies are either extended as a Remedies are either extended as a
result of gold plating, or provided result of gold plating, or provided by national law. by national law.
The scope of sub-dimensional The scope of sub-dimensional procurement bound to widenprocurement bound to widen