The European Commission has formally reacted to the tardiness of the vast majority of EU Member States in the transposition of the 2014 public procurement package. 21 out of the 28 Member States have been addressed letters of formal notice whereby the Commission reminds them of their overdue obligation to transpose Directives 2014/23/EU, 2014/24/EU, and 2014/25/EU into national law. Logically, if the Member States do not react promptly, the Commission should be opening infringement procedures under Art 258 TFEU (maybe after the summer?), which could eventually lead to the imposition of fines to Member States that continue to fail in their obligation to transpose.
This first salvo can be seen as an indication of the seriousness with which the Commission may intend to oversee the transposition of this significant reform, which seems justified by its belief that the 'new rules make it easier and cheaper for small and medium enterprises to bid for public contracts and respect the EU’s principles of transparency and competition. Increased transparency improves accountability and helps combat corruption. The rules also allow the authorities to use public procurement to work towards broader policy objectives, such as environmental and social goals and innovation' [an alternative view seems to emerge from a closer analysis of the rules, though, as will soon be apparent in the contributions to GS Ølykke and A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016)].
However, maybe from a more cynical perspective, it also seems like a first indication of the difficulties that lay ahead in terms of the effective transposition of the new procurement rules. Issues such as the transition to full, proper eProcurement, the need to oversee in an effective manner the conduct of an increasing volume of negotiated procedures, the complications derived from aggregation of procurement and cross-border collaboration (if it ever happens), or the need to reform the remedies system to make sure that the new substantive rules have sufficient bite (which the Commission however now seems to have dropped from its regulatory agenda), just to name a few of the relatively obvious issues, are clear points of future friction between the Commission and the Member States.
Also, it seems clear that infringement procedures are unlikely to fix any of these issues in a satisfactory manner, particularly where Member States simply do no have the resources (economic or otherwise, such as an adequately trained workforce) to implement the rules. Thus, all this can lead to is a futile exercise of transposition on paper (passing laws is relatively cheap and can certainly put a lid on the Commission's oversight strategy, unless it is willing to resource it properly on its own end) and maybe hope for private litigation to force its effectiveness--which would be patchy and incomplete in any case.
All in all, I think that the system is close to bursting at the seams (or at least at some of the seams) unless procurement is better resources at Member State level soon, which does not seem to be feasible in the short run. If that does not happen, any illusion of (formal) transposition will be misleading. And the litigation could in any case exist on the basis of the direct and indirect effect of the directives, which already enable a guerrilla strategy for savvy economic operators. Thus, what the Commission aims to achieve with this first salvo is unclear to me. And I am not sure that it has thought its strategy through to its ultimate consequences. Let's see if Member States hurry up to transpose (at least on paper).