This has been a busy start of the year and I look forward to unwinding for a while during Easter break. I hope you will also have a good break and to find you again here after the holiday. In the meantime, I thought I would put some things on your procurement radar:
The ECJ decided two important cases on 5 April 2017, which I will comment in detail in forthcoming posts after the break:
- Borta, C-298/15, EU:C:2017:266, on the incompatibility with EU procurement law of a national rule partially prohibiting subcontracting by establishing that, where subcontractors are relied on for the performance of a public works contract, the tenderer is required to perform itself the main works, as defined by the contracting entity. In this case, the ECJ has largely followed the Opinion of AG Sharpston (commented here).
- Marina del Mediterráneo and Others, C-391/15, EU:C:2017:268, on the scope of the Remedies Directives. In short, the ECJ found that, where there are allegations that a decision allowing a tenderer to participate in a procurement procedure was adopted in breach of EU public procurement law or the national legislation transposing it, national rules must subject such decision to an independent judicial review. This is bound to further judicialise exclusion decisions and puts renewed pressure on the development of more robust procurement review procedures--possibly requiring a reform of the Remedies Directives themselves, as I discuss at length in "'If It Ain't Broke, Don't Fix It'? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts", in S Torricelli & F Folliot Lalliot (eds), Administrative oversight and judicial protection for public contracts (forthcoming).
I have just finished two papers:
- One on the transposition of Directive 2014/24/EU in the UK. This may soon become a piece of legal history, but the paper is my contribution to the next edited collection on comparative European public procurement law that we are cooking at the EPLG. The paper is fully available here: "The Implementation of Directive 2014/24/EU in the UK", in S Treumer & M Comba (eds), Implementation of Directive 2014/24, vol. 8 European Procurement Law Series (forthcoming).
- As you may have seen in a previous post, I have also just finished another paper, which critically assesses the BBG-SKI "Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States" published by the European Commission. The paper is fully available here: "Is Joint Cross-Border Public Procurement Legally Feasible or Simply Commercially Tolerated? ~ A Critical Assessment of the BBG-SKI JCBPP Feasibility Study" (2017) European Procurement & Public Private Partnership Law Review (forthcoming).
If you decide to read any of these cases or papers during the Easter break, happy reading!