Some (anecdotal) updates on the transposition of the 2014 Public Procurement Package


At Procurement Week 2016, we had an interesting session on the transposition of the 2014 public procurement package in some of the Member States. So, beyond the official information publicly available through Eur-lex, and for those of you anxiously following the transposition process (or its absence), I thought that it could be interesting to share some additional (anecdotal) updates on the process in the Member States represented in the panel.

Each panelist was asked to report on whether there had been transposition or what are the plans for it, as well as to choose three issues that can be considered controversial in the transposition. My notes of the discussion (responsibility for errors is solely mine) are as follows:

Czech Republic foresees to transpose by 01/10/2016. Their main three worries seem to be around the use of life cycle costing, the use of quality-only tenders in healthcare and the increasing discretion contracting authorities hold in terms of exclusion.

Denmark transposed and this transposition deviated from the previous copy-out approach, which has significantly changed the nature of procurement regulation in Denmark. It was suggested that a number of rules included in the procurement act are unnecessary and the result of specific lobby demands. Main issues pointed out as problematic included: obligation to disclose evaluation method, explicit obligation to terminate when the award decision is annulled, changes in the identity of participants as well as the possibility of the contracting authority to be obliged to accept certain types of changes, and issues concerning criminal records for the purposes of the ESPD.

Estonia has not yet transposed. The bill is in Parliament and there is hope that the transposition will take force by 1 January 2017. Meanwhile, however, the Estonian Ministry of Finance has issued guidelines with regard to parts of the new directives having a direct effect.*

Finland has not transposed and there is no clear time frame. A draft legislative act was promised by government by the end of June, with a view to have transposition in place by the end of 2016, but this does not seem too realistic.** The delay is remarkable because transposition was on track and a project was submitted to public consultation in good time. However, the process was subsequently derailed due to a change in government.*** [I wonder whether this comes to show the political relevance of procurement in Finland (and in Scandinavian countries more generally)]. Secrecy was mandated on civil servants involved in the transposition, which makes this particularly opaque. Some of the issues that are discussed, though, include the need to create an oversight body (probably to be assigned to the competition authority), issues around the non-public turnover limit for in-house and public-public collaboration and its interaction with domestic competition neutrality rules (which lead to the suggestion that the limit could be set anywhere short of 20%, and possibly in the 0-10% range), the need to review remedies despite lack of action at EU level, and possible gold-plating of SME-friendly measures.

Greece has not transposed. There was a series of public consultations in March for a law that would consist of 5 books and would be implementing the new directive. This law would also reform the public contracts regulations in general and this is where things got complicated and started to go wrong: when reforming the way remedies were sought, the legislator tried to create a special entity that would examine bidders' claims in the second instance (first instance is with the CA; second instance is now with a court). However the Greek Council of State found the creation of this new entity to be against the constitution and made requests for this and other provisions to be amended. This is causing further delay.^^^

Ireland transposed on 5 May 2016, except concessions.Their main issues relate to the light-touch regime, retrospective effect of new rules to contracts tendered after 18 April but before 5 May, and many difficulties concerning the implementation of the ESPD, particularly due to their issues with leaving 'suitability' assessments to the end and how this provides wrong incentives to contracting authorities to be 'lax' about selection and exclusion.

Italy transposed 1 day late, but it is not a full transposition and the implementing regulations are not ready yet. There are significant gold-plating issues, such as the prohibition to tender design and construction together (as per Mario's emails), or the limitation of the authorisation to carry out procurement to only 35 CPBs in the whole of Italy, thus banning the activities of individual contracting authorities except for minor contracts.

In the Netherlands, the transposition act was discussed in the Dutch Senate on 14 June and the subsequent vote will take place on 21 June. This would be the last hurdle for implementation, after which publication in the Staatsblad can follow. Therefore, it seems like the planning of the Ministry of Economic Affairs will be met (1 July). Predominant discussions in the Netherlands have related to: (i) In-house procurement and the question whether additional regulation of the make-or-buy decision is necessary. A proposal (motie) has been floored in the Senate on this subject. This relates to a recent trend of the central government to in-source scanning and cleaning activities; (ii) The question whether Dutch ministries and other organisational parts of the Dutch State are separate contracting authorities for the purpose of the in-house doctrine. This was discussed in parliament and at multiple legal conferences; (iii) In light of the recent decentralisation of many social acts (Jeugdwet, Participatiewet and Wmo) to the municipalities, it has been questioned if the introduced procedure for purchasing social services in relation to article 76(1) Directive 2014/24/EU is an adequate implementation of the Directive.****

Norway has not transposed either, but being an EEA State, it has more time. There has been a project since late 2015 and it is expected to come into force relatively shortly (pending the approval by the Parliament). ***** It interesting to note that all EEA Members had initially indicated 'constitutional requirements' for the transposition of the 2014 public procurement package. In particular, despite the fact that the Joint Committee Decision (JCD) no. 97/2016 was adopted on 29. April 2016 to incorporate Directive 2014/23/EC, Directive 2014/24/EC, and Directive 2014/25/EC into Annex XVI of the EEA Agreement, at the point of adoption all the EEA EFTA States indicated constitutional requirements. The JCD can consequently not enter into force until these requirements have been lifted and all the notifications under Article 103 (1) of the EEA Agreement have been made. The Norwegian parliament has now (16.6.16) approved the incorporation and Norway can therefore lift its constitutional requirements. It is now necessary for Iceland and Liectenstein to follow suit.^^

Poland has not transposed. A legislative proposal was published on 13 May with the intention of transposing in June, and this seems to be likely. Indeed, it seems that the classic and utilities directives could be transposed in July and the concessions directive in September.****** Polish procurement law has been reformed 50 times over 10 years, so there is experience (and complaints) about such continuous process of reform. Their main difficulties are in the transposition of rules in-house provision (particularly due to effects on waste management sector), the application of rules to below thresholds contracts related to investment in revitalization zones, the use of the ESPD, as well as rules on labour law requirements.

Portugal has not transposed either, although the Azores (being a devolved administration with competence for the transposition of procurement rules), have. The only rule that Portugal transposed in its entirety in August 2015 was art 22 dir 2014/24, which required an act with over 90 provisions. *******

Romania has completed the transposition.********

Spain has not transposed and transposition any time soon is highly unlikely due to the coming general elections on 26 June, which are not likely to result in the quick formation of a new government. Some regions have started to produce reports on direct effect of some provisions of Dir 2014/24 and, controversially, the region of Catalonia adopted a full transposition act on 31 May despite lacking the powers to do so. This raises complex internal constitutional issues and legal certainty is not necessarily fostered by the adoption of unconstitutional rules. This may have to do with the prospect of future liability for fines imposed by the CJEU for late transposition.

Sweden postponed transposition to 1 January 2017 but even that is unlikely. There is significant discussion on direct effect in the meantime, including for contracts below thresholds and reservable contracts for social and special services. The general discussion surrounding transposition is focusing on issues such as the possibility to use procurement to impose labour standards set in collective agreements, as well as innovation related topics.

UK (Eng & Wales) transposed in 2015 and amended rules in 2016. There is discussion in whether any benefits have been obtained from such early transposition. There is indication of increased use of competitive procedures with negotiations and dynamic purchasing systems. There is also an ongoing discussion concerning conflicts between the text of the regulations and guidance published by the Crown Commercial Services, which creates uncertainty at practical level.

I hope this is interesting/helpful/thought-provoking. Please feel free to use the comments function to provide additional updates on other Member States, or to expand the qualitative discussion on any of those mentioned above.

* Added thanks to Dr Mari Ann Simovart.

^^^ I am grateful to Panos Somalis for this update on Greece.

** Thanks to Dr Kirsi-Maria Halonen for the precision that draft legislation can still be expected this June.

*** Thanks also to Timo Rantanen for his additional insights.

**** Thanks to W. A. (Willem) Janssen for information on the Netherlands.

***** Thanks to Ignacio Herrera Anchustegui for information on Norway and some comments on Portugal.

^^ Thanks to Werner Miguel Kuhn for this detailed update on the EEA process.

****** Thanks to Dr Paweł Nowicki for further details on Poland.

******* Thanks to Dr Pedro Telles for information on Portugal.

******** Thanks to Ioan Baciu for the update on the Romanian transposition.