I am in the process of editing a collection of papers on the Regiopost judgment for a book and, in one of them, my colleague Prof Tonia Novitz raises the point that the ECJ could have taken Directive 2014/24 into consideration even if it was not applicable ratione temporis. I found this a very valid point and it got me thinking about whether the ECJ is consistent (or not) in taking into account new(er) iterations of existing directives when they resolve disputes to which the (now) old directive still applies.
In the specific case of procurement, and based only on the 2016 cases I commented in this blog, I could find that the ECJ has sometimes considered ‘in anticipation’ the 2014 version of the public procurement directive (2014/24/EU) in cases where it was not applicable ratione temporis--and thus decided under the 2004 version (2004/18/EC). This happened, for example, in
- Judgment of 8 December 2016 in Undis Servizi, C-553/15, EU:C:2016:935
- Judgment of 2 June 2016 in Falk Pharma, C-410/14, EU:C:2016:399
- Judgment of 2 June 2016 in Pizzo, C-27/15, EU:C:2016:404
- Judgment of 7 April 2016 in PARTNER Apelski Dariusz, C-324/14, EU:C:2016:214
The ECJ has also engaged with other procurement directives (on Concessions, Dri 2014/23) before they were applicable, such as
- Judgment of 14 July 2016 in Promoimpresa, C-458/14, EU:C:2016:558
However, there are also cases where the ECJ rejected to do so, such as
- Judgment of 10 November 2016 in Ciclat, C-199/15, EU:C:2016:853
- Judgment of 27 October 2016 in Hörmann Reisen, C-292/15, EU:C:2016:817
- Judgment of 8 September 2016 in Politanò, C-225/15, EU:C:2016:645
More detailed analysis would be necessary to establish the type of cases in which the ECJ decided (not) to resort to the newer version of the directive, and the reasons it offered (not) to do so. It would also be interesting to expand the study significantly, both to make sure it is exhaustive in the area of public procurement (ie 2014-2017 + checking for additional cases) and to identify some additional area of internal market law to use as a comparator.
Like in (too many) other occasions, I am not sure I will have the opportunity to explore these issues any time soon. So here is the idea for a research project. Anyone that is interested and has the time / mental bandwidth for it, feel free to use it.