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The emergence of trans-EU public law:public procurement as a case study
Dr Albert Sanchez-GraellsSenior Lecturer in Law
UEA Law School Research Seminar Series
23 November 2016
1Emergence of trans-EU public law: procurement
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Motivation / starting point• Directive 2014/24/EU on public procurement has
created (cross-border) cooperation mechanisms• Article 37: centralised procurement• Article 38: occasional joint procurement• Article 39: cross-border centralised / joint procmnt
• Rec (73) assumes completeness of solution together with Rome I (Reg 593/2008) [!]
Emergence of trans-EU public law: procurement
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Scalability of the questions• Are there gaps between layers of … ?
• National public law of EU Member States• EU public law (including CFREU)• International public law
• If we observe cross-border cooperation in practice, can we also assume that the situation is legally covered? Is this extra/alegal?
Emergence of trans-EU public law: procurement
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Research questions• What (public) law applies when the public
administrations of EU Member States cooperate in cross-border activities?
• What other issues of conflicts of laws / jurisdiction arise in these settings?
• Can we observe the emergence of trans-EU public law? Is EU law driving that process?
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Public procurement case study• One of several I intend to carry out in the future
(others include competition enforcement)• Useful due to the complexity of legal
relationships that arise + relatively high level of substantive harmonisation at EU level
• Clear ‘business case’; likely to see administrative practice and litigation emerging soon
Emergence of trans-EU public law: procurement
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A legal utopia or a practical dystopia?
Emergence of trans-EU public law: procurement
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CPB1 MSA
CPB2 MSB
CA1 MSA
CA2 MSA
CA3 MSB
CA4 MSB
Sup1 MSA
Sup3 MSC
Sup2 MSB
(R3)
FWA
(R1)
(R2)
(R3)
(R4)
(R4)
Member State A Member State BMS C
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A spoke in the cross-border procurement wheels? Or the ‘EU trump’ for trans-EU public law?
• Art 39(1)II Dir 2014/24• Contracting authorities shall not use the means
provided in this Article for the purpose of avoiding the application of mandatory public law provisions in conformity with Union law to which they are subject in their Member State.
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Tentative conclusion• Existing EU level rules facilitate (push for?)
emergence of cross-border procurement but fail to completely define the applicable regime
• Opportunity for the emergence of trans-EU public law (substantive? / conflict of laws?)
• Legal uncertainty may play in different ways
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Initial (technical) publication• A Sanchez-Graells, “Collaborative Cross-Border
Procurement in the EU: Future or Utopia?” (2016) 3(1) Upphandlingsrättslig Tidskrift (Procurement Law Journal) 11-37, available at http://www.urt.cc/?q=node/140.
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Thank you for your attention
Be in [email protected]://howtocrackanut.com@asanchezgraells
Emergence of trans-EU public law: procurement
23 November 2016
