Eversheds publishes report on transposition of procurement rules & interesting (guess)timates about procurement litigation in 20 jurisdictions

Led by Tomasz Zalewski, the procurement team at Eversheds has put together the report "Flagging up the big issues. EU procurement reform guide 2016", where they provide short updates / country reports on the process of implementation of the 2014 Public Procurement Package in 19 EU jurisdictions and in Switzerland. This is a very interesting source of information because it not only offers an update on the process of implementation, but also flags up the most relevant issues and difficulties in the transposition process in each jurisdiction, and includes an Eversheds team's guesstimate of the volume of public procurement litigation in each jurisdiction. This data, even if used with great caution, allows for some reflections.


On the point of the status of the process for the transposition of the 2014 Public Procurement Package, the Eversheds report confirms that a significant number of EU countries are late in the transposition of the new rules. No surprises here. As mentioned by a Commission representative in a conference last week, only 11 Member States have transposed all the Directives in the 2014 Public Procurement Package so far and, as of last week, there were 58 (potential) infringement proceedings on the table of the European Commission.

More interestingly, the Eversheds report allows us to get some additional detail (see table below) and this comes to show that the information communicated by the Member States to the European Commission on whether they have adopted (partial) transposition measures for Directives 2014/23, 2014/24 and 2014/25 is not necessarily completely reliable.

For example, Spain has notified measures transposing Directive 2014/24, while that transposition has not actually taken place (to any meaningful extent, anyway). Conversely, Ireland has transposed both Directives 2014/24 and 2014/25, but this is not reflected in Eur-lex. Moreover, a number of Member States have formally transposed the 2014 Public Procurement Package or parts of it, but the reform is not in force due to the need to further executive orders, implementing regulations or other types of secondary legislation (this is clearly the case in Belgium and Italy, but to some extent affects a larger number of jurisdictions where the application of the new rules depends, at least in practice, on additional legislation or guidance). 

In my view, this triggers a significant issue on the accuracy and quality of (qualitative) information about the transposition of the 2014 Public Procurement Package (and Directives, more generally) and the European Commission will be well advised to accelerate work on transposition monitoring (for which it recently tendered a consultancy contract).


The Eversheds report is also interesting regarding the picture it offers on the volume of litigation in the area of public procurement. Previous information published by the European Commission in its 2011 Evaluation Report on the Impact and Effectiveness of EU Public Procurement Legislation offers a benchmark for comparison. However, given the time lag between the reported data and the seemingly different types of cases encapsulated in each of the reports, the overview does not necessarily help in getting an understanding about litigation trends, either in each of the jurisdictions or in the EU overall. However, major differences between jurisdictions seem clearly identifiable and a stable trend over the last decade or so. This is puzzling but important in the context of the (abandoned) reform of the Remedies Directives, on which the European Commission is expected to issue a final position soon (for background discussion, see here and here).

Overall, the Eversheds report seems to indicate that countries with and without specialised administrative review bodies or specialised administrative courts show a very different volume of public procurement litigation or, at least, that having such review mechanisms makes the litigation visible--as other jurisdictions, such as the UK (Eng & Wales) or Ireland, probably rely on informal dispute resolution mechanisms (and settlements) to a larger extent, which makes an assessment of the actual litigiousness of public procurement difficult to carry out in a comparable manner.

Final Thought

I think that the Eversheds report must be welcome and it would be useful if others could complement the information for the missing EU jurisdictions. Collection of (reliable) evidence is a big hurdle for sensible public procurement reform. This report sheds some light on important aspects and, even if it needs to be considered carefully due to the lack of common methodology and necessarily impressionistic aspects of a document that is not meant to provide legal advice, it must be welcome that a commercial law firm is willing to take this step and share its procurement intelligence with all of us. I for one would welcome others to follow suit.