In its Judgment in Elitaliana v Eulex Kosovo, C-439/13 P, EU:C:2015:341, the Court of Justice of the European Union (CJEU) has followed the Opinion of Advocate General Jääskinen (discussed here) and considered that it has jurisdiction to review procurement procedures conducted by external missions of the European Union as part of the Common foreign and security policy (CFSP) because they functionally fall within its competences linked to the execution of the EU budget.
The CJEU clearly indicated that, despite the fact that it does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions (para 41), any restrictions on its competence to interpret the EU Treaties needs to be narrowly construed and, consequently, it must assert jurisdiction when CFSP matters affect the EU budget. More specifically, the CJEU indicated that
47 ... it is not disputed that the Eulex Kosovo Mission is civilian in nature and that the expenditure relating to the helicopter-support service for the Eulex Kosovo Mission was to be allocated to the European Union budget.
48 Therefore, the measures at issue, whose annulment was sought on the basis of an infringement of the rules of EU public procurement law, related to the award of a public contract which gave rise to expenditure to be charged to the European Union budget. Accordingly, the contract at issue is subject to the provisions of the Financial Regulation.
49 Having regard to the specific circumstances of the present case, the scope of the limitation, by way of derogation, on the Court’s jurisdiction ... cannot be considered to be so extensive as to exclude the Court’s jurisdiction to interpret and apply the provisions of the Financial Regulation with regard to public procurement.
50 Consequently, the General Court and, in the case of an appeal, the Court of Justice have jurisdiction to hear this case (C-439/13 P, paras 47-50, emphasis added).
In my view, this is the correct decision. However, as indicated earlier (here
), the question that remains open, then, is to what extent there is a need to revise the EU's Financial Regulation to include provisions on mixed civil-military/defence procurement along the lines of the regime foreseen in Directive 2009/81
, so that compliance with the rules is not too burdensome for external missions, at least in their early stages. To be fair, running the external missions of the European Union is clearly challenging and procurement probably does not rank very high in the priorities of bodies and agents that need to make it happen. And, in those circumstances, it is fair to say that the regime for urgent procurement can still be rather limiting, particularly as challenges and protests are concerned. Hence, this may be an area that needs regulatory reform.
Other than that, and from the strict perspective of the scope of competence of the Union courts in the field of public procurement, it may also be a good occasion to rethink the role of the General Court and the CJEU as public procurement review bodies. In my opinion, developments such as the Elitaliana v Eulex Kosovo case point to the need to either create a specialized review chamber parallel to the EU Civil Service Tribunal, or to subject procurement review processes to alternative dispute resolution mechanisms. Maybe this is a second area in need of regulatory reform/institutional redesign.