A spoonful of #publicprocurement in the #CJEU's bowl

Public procurement has been gaining relevance in the case law of the Court of Justice of the European Union (both at the General Court and Court of Justice level), both in qualitative and quantitative terms. A look at the statistics on public procurement cases clearly shows their increasing numerical importance, as well as the increasing backlog that is being accumulated in this area of EU economic law. 

(*) Note: Unfortunately, prior to 2010, the data for the Court of Justice does not include a separate category for public procurement cases (they were likely to be classified under approximation of laws, or under the relevant fundamental freedom). Therefore, the actual numbers may be higher than the available statistics show but, in my view, the general trends seem clear.

In terms of new cases, it seems clear that, despite the increasing prescriptiveness of the public procurement rules, the growing body of EU case law that interpret them, and the issuance of guidance by the European Commission--public procurement is an area of growing litigation. This is particularly clear before the General Court, which has the role of appeals tribunal for the public procurement decisions of the EU Institutions--which makes it surprising that, actually, the number of tender challenges the GC hears is relatively small if one takes into consideration the number of procurement procedures run by EU Institutions on a yearly basis (the Commission alone tenders over 9,000 contracts a year, mostly for services) [which may raise an issue of effectiveness of remedies for EU institutional procurement, but this is an issue that would deserve careful and separate consideration].

In view of this growing number of new cases, it is encouraging to see that the number of completed cases is also growing. However, this may be just a natural adjustment to the number of new cases--the more public procurement cases get on the table, the more that get completed in due time. In this regard, it would be interesting to estimate the average duration of public procurement cases to try to correlate increases in new cases (in 2008, for instance) with larger numbers of completed cases some years after (e.g. in 2011 or 2012).

On a less positive note, a comparison of new and completed cases shows that the pace of increase of completed cases is insufficient to cope with the larger workload of the Court of Justice in this area. It is clear to see that there is an increasing backlog of public procurement cases and that, in its best years, the EU Courts just manage to complete as many cases as they receive--leaving a relatively permanent backlog of some 40 cases before the GC and additional 20 cases before the CJEU.

All in all, then, it seems clear that the EU Courts have a lot of public procurement cases in their plates and that this is an area due to absorb more and more resources of this institution. In view of the larger workload of the GC in this area and the fact that it serves as the first instance for judicial review of the public procurement decisions of the EU Institutions, given the relatively minor relevance of some of these cases--as the (in)famous Evropaiki Dynamiki saga shows--and the fact that some of them are factually intensive, it may be worth reconsidering the attribution of this role to the GC and the potential creation of a specialized chamber to deal with public procurement cases (and there may be room for other specialized chambers, such as one on trademark law, but this is a matter for another day).

In any case, the development of EU public procurement law through the jurisprudence of the EU Courts seems prone to remain a constant feature of this area of EU economic law, at least for some years to come, until the existing 'stock' of pending cases is processed by the system. Something to keep an eye on.