The Emergence of Trans-EU Collaborative Procurement: A 'Living Lab' for European Public Law

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I have uploaded a new working paper on SSRN: ‘The Emergence of Trans-EU Collaborative Procurement: A “Living Lab” for European Public Law’ (March 14, 2019) https://ssrn.com/abstract=3392228. Its abstract is as follows:

Trans-EU collaborative procurement is a fertile ‘living lab’ for the observation, theorisation and critical assessment of developments in European public law. This paper maps the emergence of this novel type of cross-border administrative collaboration and scrutinises the new rules of Directive 2014/24/EU, which evidence the tension between promoting economic co-operation across borders within the internal market and the concern to respect the Member States’ administrative autonomy. The paper critically assesses the EU legislative competence in this area, extracts consequences for balancing trans-EU collaboration with ‘mandatory public law requirements’ at Member State level and proposes minimum functional guarantees to be expected in the implementation of trans-EU collaborative procurement.

Critical Assessment of the BBG-SKI study on the feasibility of joint cross-border public procurement

Following last week's initial reaction to the publication by the European Commission of the "Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States" prepared by BBG and SKI, I have now written a response paper: "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 (forthc), available at: https://ssrn.com/abstract=2944008.

The paper provides a critical assessment of the BBG-SKI study and submits that, while the study provides some interesting data and details about relevant case studies, it does not shed significant light on the doubts created by the rules on joint cross-border public procurement (JCBPP) in the 2014 Public Procurement Package [which I had previously sketched out here], and that the main weakness of the study is its lack of a general legal analytical framework.

In order to go beyond the shallow legal analysis of the BBG-SKI study and try to gain additional legal insights on the basis of the same empirical data, the paper proposes an analytical framework under which to assess the legal compliance of JCBPP structures. It then summarises each of the case studies included in the BBG-SKI study and offers a critical (re)assessment of the issues that would have required more information and/or which are insufficiently analysed in the BBG-SKI study. Based on this reorganised empirical evidence, the paper proceeds to a critical assessment of some of the outstanding legal barriers and challenges to JCBPP. It concludes by stressing some of the remaining uncertainties concerning legal development at Member State level, and calls on the European Commission to facilitate more detailed research leading to the adoption of future guidance on JCBPP under the 2014 EU Public Procurement Directives.

Study on the feasibility of joint cross-border procurement published (teaser)

The European Commission has recently published the "Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States" prepared by BBG and SKI. This study is a follow up on the Commission's work on collaborative procurement (see here and here) and is primarily meant to "to carry out a feasibility study on the possible implementation of Joint Cross-Border Public Procurement (JCBPP), in particular focusing on the legal, administrative and organisational aspects of four selected JCBPP projects" (p. 9).

At least in part, the study would have to address the complex legal issues involved in JCBPP projects, which I mapped out in my paper “Collaborative Cross-Border Procurement in the EU: Future or Utopia?” (2016) 3(1) Upphandlingsrättslig Tidskrift 11-37 (to which the study refers). However, the study does not really dig deep on any of those legal issues and keeps the analysis at a very shallow level -- eg stressing on repeated occasions that "JCBPP is more a matter of legal complexity than of legal barriers", which I struggle to understand.

I find particularly puzzling that its main conclusions concerning legal aspects of JCBPP is that

... we must be aware of the fact that the evolution of the legal framework dealing with JCBPP is still in progress and that the regulatory approach towards the complex theme of JCBPP has not wholly settled yet in all its details. Just as in other areas of EU harmonisation legislation, a number of questions will have to be dealt with by the Member State’s legislation and jurisdiction, but may eventually also need answering by the European Court of Justice. However, the relevant legal provisions on the EU level show some gaps, are not always fully coherent and definitely pose a number of interpretational problems of their own. Non[e]theless in looking at the cases portrayed in this study, we also see that from a legal point of view (sic) JCBPP initiatives are not necessarily only a risky endeavour, but also open up opportunities for achieving the goal of enhancing efficiency in public procurement (p. 111, emphasis added).

I am going to re-read the study carefully and comment on it in more detail soon, trying to identify in particular the ways in which the case studies it discusses offer viable legal solutions or allow contracting authorities to exclude or mitigate the legal risks derived from JCBPP. For now, I just wanted to raise awareness of the publication of the report.