Collaborative Cross-Border Procurement in the EU: Future or Utopia?

I have uploaded a new paper on SSRN, which I will be presenting at the workshop on ‘Collaborative Efficiency in Government: The Trend, The Implications’ during the forthcoming ECPR Joint Sessions, Scuola Superior Sant’Anna and University of Pisa, 24-28 April 2016. 

The paper is entitled 'Collaborative Cross-Border Procurement in the EU: Future or Utopia?' and, in short, tries to conceptualise and look critically at the immensely complex legal issues that Directive 2014/24 has left unresolved. In order to conceptualise the political, economic and legal issues, I use a theoretical scenario that looks like this (so maybe it needs to be read with pen and paper, apologies!):



As the abstract explains in more detail:
Collaborative public procurement has been gaining traction in recent years and could be considered at the spearhead of public procurement reform and innovation. The 2014 reform of the EU public procurement rules (mainly Directive 2014/24) has expanded the tool-kit available to contracting authorities willing to engage in joint or centralised procurement activities, and in particularly in cross-border procurement collaboration. In a push forward, and as part of the Strategy for a deeper and fairer single market in its larger context, the European Commission is developing a policy to facilitate and promote cross-border collaborative public procurement in the European Union.

This paper adopts a sceptical approach and critically assesses the political, economic and in particular legal factors that can facilitate or block such development. To do so, it focuses on a case study based on a theoretical scenario of cross-border collaboration between centralised purchasing bodies in different EU Member States. The paper ultimately aims to establish a blueprint for future legal research in this area, in particular regarding the emergence of trans-EU public law.
This is an area where much more thoughtful legal research is needed, and I intend to do so in a paper I am just starting on the 'The emergence of trans-EU public law. Public procurement as a case study'. For now, though, the exploratory paper is out and comments would be most welcome!

The full paper is available: A Sanchez-Graells, Collaborative Cross-Border Procurement in the EU: Future or Utopia? (February 18, 2016). Available at SSRN: http://ssrn.com/abstract=2734123.

New paper with extended comments on EasyPay from a public procurement perspective (C-185/14)

Ignacio Herrera Anchustegui, from the Faculty of Law of the University of Bergen, and I have just uploaded on SSRN a new paper where we offer comments from a public procurement perspective on the Judgment of the Court of Justice of the European Union of 22 October 2015 in EasyPay and Finance Engineering, C-185/14, EU:C:2015:716 (for an initial reaction, see here).

As the abstract details,
In EasyPay and Finance Engineering (C-185/14), the Court of Justice of the European Union (CJEU) has revisited the concept of undertaking for the purposes of the application of EU competition law. It has clarified the test applicable to economic agents engaging in ‘mixed’ economic and non-economic activities. The EasyPay test determines that, in order not to be qualified as “economic” because of its links with another activity that fulfils an exclusively social function based on the principle of solidarity and entirely non-profit making, an activity must, by its nature, its aims and the rules to which it is subject, be inseparably connected to it. In the paper, we discuss how the CJEU has arguably given a stricter interpretation and adopted a less lenient approach to the severability or separation of activities than in previous cases like FENIN, Selex or Compass-Datenbank. In our view, this interpretation is anchored on a functional analysis of the concept of undertaking, and it is a welcome development that will have far reaching implications.

Beyond that general discussion, the paper focuses on the potential implications of the EasyPay test in the area of public procurement and, in particular, for the activities of central purchasing bodies. We submit that EasyPay facilitates a revision of the current position regarding the direct applicability of EU competition law to entities carrying out public procurement activities and, in particular, central purchasing bodies. We also submit that this is highly desirable because it grants legal certainty to economic operators when dealing with a central purchasing body, to the effect that the purchasing activities will be under competition law and the derived constrains on the market behaviour of large public buyers that may abuse of their buyer power.
The paper is available as: Sanchez-Graells, Albert and Herrera Anchustegui, Ignacio, Revisiting the Concept of Undertaking from a Public Procurement Law Perspective – A Discussion on Easypay and Finance Engineering (C-185/14) (November 26, 2015). Available at SSRN: http://ssrn.com/abstract=2695742.

Paper on centralisation of procurement and competition law

Ignacio Herrera Anchustegui, from BECCLE - University of Bergen, and I have just completed a working paper on the new rules on centralisation and occasional procurement under articles 37-39 of Directive 2014/24. The paper assesses the risks, rationale and justification for the rules on centralisation and aggregation of public procurement in Directive 2014/24. The paper is entitled "Impact of public procurement aggregation on competition. Risks, rationale and justification for the rules in Directive 2014/24" and is now part of the University of Leicester School of Law Research Paper Series.
 
The paper explores the justifications advanced for the aggregation of purchasing and the countervailing risks it generates. In both cases, it focusses in economic and administrative aspects. It then proceeds to a summary overview of the new rules for the aggregation of public procurement in Directive 2014/24, and emphasised how the Directive is expressly recognising possibilities that clearly exceed the more modest approach in Directive 2004/18. Moving on, it then focusses on the potential justification for certain activities now permitted by the 2014 rules, and engages in a critical assessment of their competitive impact. The paper briefly highlights the far-reaching and not necessarily positive implications that a maximisation of the centralisation and aggregation possibilities under Directive 2014/24 could have, and proposes that strict competition law enforcement will be necessary to avoid undesired consequences. Some suggestions for further research are provided by way of conclusions.
 
The full paper is available for download on SSRN. Its full citation is:

Sánchez Graells, Albert and Herrera Anchustegui, Ignacio, Impact of Public Procurement Aggregation on Competition. Risks, Rationale and Justification for the Rules in Directive 2014/24 (December 5, 2014). University of Leicester School of Law Research Paper No. 14-35. Available at SSRN:  
http://ssrn.com/abstract=2534496.