In their forthcoming book Enforcement in the EU Single Market (http://ssrn.com/abstract=2160236) Jacques Pelkmans and Anabela Correia De Brito provide an interesting overview of the laws and regulations of the single market of the European Union, the current EU enforcement landscape and its functioning, with a particular focus on compliance with public procurement rules. This is a very topical and relevant field of inquiry and their book sheds some interesting insights into the actual level of compliance with EU public procurement rules and the potential gains to be obtained if the current modernization process is correctly driven towards simplifying and promoting compliance.
As the authors rightly indicate,
Among all types of EU single market legislation, the problems with public procurement are undoubtedly the harder ones. The potential market is huge: there is still an enormous potential of cross-border competition for contracts and the economic welfare gains can be very substantial. The European Commission’s proposals of December 2011 should be of some help. There should be more harmonization, including in the national review and remedies systems.
In their book, Pelkmans and Correia De Brito offer a short but useful typology of enforcement barriers that stress some of the main areas of difficulty, such as administrative barriers [which include include "the incorrect application of EU directives, conformity assessment barriers and enforcement issues in (intra-EU) public procurement, especially non-publication (when above the value thresholds in EU law)] or the maybe more implicit restrictions derived from gold plating and an improper application of the rules controlling technical requirements in public procurement procedures.
Further than that qualitative analysis of the enforcement landscape, some of the data provided by Pelkmans and Correia De Brito is also worth highlighting. They provide a statistic of the cases handled by the Commission concerning the enforcement of public procurement rules (p. 89, please note that the most recent year is to the left, which makes the reading of the table slightly counter intuitive):
As the authors derive from those numbers:
[...] the number of public procurement infringement files handled by the European Commission each year has progressively decreased in the period 2007-10 (155 in 2010, 258 in 2009, 333 in 2008 and 344 in 2007). Most of the files opened by the Commission were closed during the pre-administrative/administrative phase of the infringement procedure (76, 127, 163 and 142, respectively). However, in comparative terms, the number of cases referred to the Court of Justice of the European Union increased slightly in 2010 (7.5% of the cases in 2010 had been reported to the CJEU, compared with 2.3% of the cases in 2009, 2.4% in 2008 and 3.5% in 2007).
Even if the number of infringement procedures opened by the Commission in the reported period had decreased in relation to previous years, the case load of public procurement infringement complaints still remains high and indicates that compliance levels should be improved in a number of member states.
In my opinion, the analysis of the data also offers other interesting hints, since it shows that there seems to be a significant amount of backlog piling up in the Commission's docket (ie the number of cases closed is less than 50% of those open for any year in the 2007-10 period) and that only a small fraction of those cases are referred to the CJEU (which means that political negotiation remains the paramount enforcement tool in the public procurement field).
I also find it interesting to compare the relatively low number of public procurement cases based on Article 258 TFEU and the increasing number of Judgments of the CJEU and the GC in the field of public procurement. A quick search for the words "public procurement" with the case-law search engine of the curia webpage retrieves over 730 documents, most of which were produced after the adoption of the current 2004 Directives. Such a contrast in numbers indicates that public procurement enforcement is running trough two very different roads when one compares its enforcement based on the "law in the books" (Commission enforcement) and the "law in action" (references for preliminary rulings and challenges to procurement decisions of the European Institutions). This seems, then, a worthy area were to focus future research efforts.
In their conclusions, Pelkmans and Correia De Brito find that the source of the massive litigation in public procurement is basically the heterogeneity of the rules. They submit that:
There are still numerous ‘barriers’, real and perceived, in the internal public procurement market. Member states have (too) much regulatory discretion because the procurement directives are ‘coordination’ directives, with insufficient harmonization. The ‘regulatory heterogeneity’ in the area is far too costly for the businesses interested in cross-border or even EU-wide operation. More harmonization and/or disciplines of national ‘special or extra’ rules and requirements should urgently be pursued. Also, the national review and remedies systems are vastly different in terms of rules, procedures, ease-of-access and effectiveness. Such complications go squarely against the justified desire of business to have prior confidence in cross-border tenders. Quick access to national reviews of public procurement is an asset, but its utility is dramatically diminished by the overly fragmented arrangements that confuse business and undermine a level playing field. Harmonization here is tough given the incorporation in national legal systems, but EU-wide performance criteria might be introduced to enhance confidence for cross-border entrepreneurs (pp. 130-131).
This may be a call for a shift from having public procurement Directives to the adoption of proper public procurement Regulations (although many scholars, such as Arrowsmith or Treumer, have already indicated that the EU public procurement directives just fall shy from being disguised regulations due to their high degree of prescriptiveness).
Be it as it may, the findings of the authors may be worth taking into consideration in the last steps of the modernization process of EU public procurement rules, which still seems to be scheduled for completion before Summer of 2013. Having enforcement considerations in the back of the policymakers' heads when finalizing the drafting of the new rules seems definitely desirable.