The paper engages in an exploratory analysis of the role of EU competition law could have in keeping the cloud computing industry competitive and, if possible at all, free from (potential) abuses of dominance by its main players. The paper has the good intuition to suggest that public procurement decisions by governments may play a key role in either the promotion of undistorted competition (if they opt for transparent standards based on interoperability) or, on the contrary, the creation of a very concentrated and potentially monopolistic market structure (if they unduly impose specific technological solutions). This is a very important point, and one that public procurement economists and commentators have been stressing for a long time.
However, when the paper moves on to suggest how to legally prevent and control those issues, it is completely oblivious to the existence of EU public procurement rules. Indeed, Bornico & Walden indicate that, where the contracting authority imposes a given (propietary) technological solution
... harmed competitors may challenge the choice of the public administration alleging that their specifications fit best the requirements ... or may challenge the behaviour of the firm whose specifications were chosen, but only if the firm can be considered dominant. More importantly competitors may challenge the choice of the public administration under Article 107 TFEU if the outcome of public procurement distorts competition. The choice of formal specifications may soon be a source of disputes in the EU market, along the lines of the Google dispute in the US [by reference to Google Inc. and Onix Networking Corporation v. The United States and Softchoice Corporation (United States Court of Federal Claims 2011)]; although it is too early to tell how technological choices made by public administrations will be dealt with by competition authorities in the EU. (p. 27, emphasis added).
Secondly, aggrieved competitors would have a much better shot under the applicable rules on the design of technical specifications. Indeed, it has long been the position of the ECJ, now consolidated in the applicable Directives 2004/18 (and/or 2014/24, where transposed), that '[u]nless justified by the subject-matter of the contract, technical
specifications shall not refer to a specific make or source, or a
particular process, or to trade marks, patents, types or a specific
origin or production with the effect of favouring or eliminating certain
undertakings or certain products. Such reference shall be permitted on
an exceptional basis, where a sufficiently precise and intelligible
description of the subject-matter of the contract ... is not possible; such reference shall be accompanied by the
words "or equivalent".' (emphasis added) [art 23(8) dir 2004/18, and now art 42(4) dir 2014/24; for discussion, see S Arrowsmith, The Law of Public and Utilities Procurement. Regulation in the EU and UK, 3rd edn, vol. 1 (London, Sweet & Maxwell, 2014) 254-55 and 1068 ; and A Sanchez Graells, Public procurement and the EU competition rules (Oxford, Hart Publishing, 2011) 271-72]. Consequently, specific technological choices that excluded equivalent solutions would immediately be in breach of EU public procurement rules.
Thirdly, a breach of those rules gives aggrieved bidders and other interested economic operators a ground to challenge the procurement procedure before domestic courts or procurement complaints boards, under the provisions of Directives 89/665 and 92/13 (as amended by dir 2007/66). This is a much clearer litigation path and one that would yield much better results to disappointed bidders and competing (technological) firms.