Easter 2018 Procurement Radar [back on w/c 9 April]

©  maxmaria .

Dear How to Crack a Nut friends,

I am sure you will have had as full a first quarter of the year as me, and I hope you can enjoy a well-deserved break over the Easter period.

I have a few things on the radar, on which I am thinking but have not had time to write blog posts (see below, in case you need some reading, and thanks to those of you who alerted me to some of these issues).

However, I need to take a break from blogging to concentrate on a couple of papers and an edited book that I have neglected for too long. So, I thought I would stop for the duration of the Easter judicial vacation of the Court of Justice. I will thus aim to resume blogging on the week commencing 9 April.

I hope to find you here then.
Best wishes,

On the radar

  • On conflicts of interest and damages compensation for loss of opportunity in public procurement of the EU Institutions (ie under Art 340 TFEU), see the Judgment of the General Court (Third Chamber, Extended Composition) of 28 February 2018 in Vakakis kai Synergates v Commission, T-292/15,  EU:T:2018:103.

  • On the protection of essential interests of the Member States (special security measures) as an exception to compliance with EU public procurement law, see Judgment of the Court of Justice of the European Union of 20 March 2018 in Commission v Austria, C-187/16, EU:C:2018:194. For discussion of the Opinion of AG Kokkot in this case, see my previous blog entry.

  • On the threshold for liability in damages due to breach of public procurement law, in addition to the discussion of Fosen-Linjen (see here and here), you may be interested in the views of the Irish Court of Appeals--which followed the UK Supreme Court's approach and implicitly rejected the EFTA Court's position by establishing that 'in the case of Francovich damages (and, by extension, damages for breach of public procurement rules under Article 9(6) of the 2010 Regulations), it is necessary to show not simply that there had been an objective breach of breach of E.U. law, but rather that such breach was either “grave or manifest” or “inexcusable”'; Word Perfect Translation Services Limited -v- Minister for Public Expenditure and Reform [2018] IECA 35, para 56.

  • On the classification of concessions contracts as for works or for services, see the Judgment of the EFTA Court of 21 March 2018 in  EFTA Surveillance Authority v Norway (Kristiansand's parking), case E-4/17 (and a press release also available).

  • On public-private partnerships and their failure to deliver adequate value for money, see the hot-off-the-press European Court of Auditors Special report 09/2018: Public Private Partnerships in the EU: Widespread shortcomings and limited benefits.

  • Even if it was published a while back, it may be worth catching up with the European Commission's February 2018 Public Procurement Guidance on avoiding the most common errors in projects funded by the European structural and investment funds.