Sanchez Graells, A. (2019). The Emergence of Trans-EU
Collaborative Procurement: A 'Living Lab' for European Public Law.
Public Procurement Law Review
,
29
(1), 16-41.
https://doi.org/10.2139/ssrn.3392228
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THE EMERGENCE OF TRANS-EU COLLABORATIVE PROCUREMENT:
A ‘LIVING LAB’ FOR EUROPEAN PUBLIC LAW
Albert Sanchez-Graells
*
Abstract
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.
Keywords
European public law, trans-EU public law, public procurement, collaborative procurement.
*
Professor of Economic Law, University of Bristol Law School. a.sanchez-graells@bristol.ac.uk. Comments
welcome. I am thankful to my colleagues in the International, European and Human Rights Research Primary
Unit at the University of Bristol Law School for a fruitful discussion on the seminal ideas explored in this paper.
Different versions of this paper were then presented at the Law School of the University of East Anglia and the
Scuola Superiore Sant’Anna in Pisa. I am grateful to Sebastian Peyer, Giuseppe Martinico and Marta Simoncini
for arranging those seminars and discussing previous drafts, and to all participants for their comments and
feedback. I am also grateful to the Collegio Carlo Alberto of the University of Turin for the Visiting Fellowship
that allowed me to finish this article, including its presentation at a final workshop at the Faculty of Law of the
University of Turin. I am particularly thankful to Francesco Costamagna, Roberto Caranta and Mario Comba for
their support and useful discussions. I am also indebted to Stephen Weatherill, Valentijn De Boe, Akis Psygkas,
John Coggon and Baudouin Heuninckx for additional feedback and comments, as well as to Ardavan Arzandeh
and Anatoli Tsakalidou for guidance on specific issues. I am also grateful to the editors and reviewers for
additional suggestions on how to improve the paper. Despite all this input, I am solely responsible for any
remaining errors, and all opinions expressed in this paper are my own. Full disclosure: I provided legal advice in
an experimental cross-border joint procurement project for the purchase of paper carried out by an Italian and a
French CPB. The analysis in section VI is informed by that practical experience.
1
I. INTRODUCTION
Despite being an increasingly standard topic for comparative law research,
1
EU public
procurement law tends to go generally unnoticed and rarely features in discussions of emerging
trends in EU administrative law and their conceptualisation.
2
Procurement is commonly seen
as a specialized and narrow set of procedural EU public law that mainly concerns a vertical
relationship between the EU as keeper of the internal market and the public administrations of
the Member States as the addressees of procurement rules—with a relatively minor aspect of
horizontal collaboration involving information exchange and monitoring.
3
This horizontal
element is however strongly mediated by the European Commission and, given the Member
States’ resistance to its development,
4
it falls short of establishing a ‘true’ or fully-functioning
network of procurement authorities.
5
Thus, public procurement tends not to be seen as an
interesting case of composite EU administration because its practice and its instrumentalisation
for policy delivery (e.g. concerning green, social or innovation procurement) remain
fragmented and constrained to domestic settings, with even the procurement of the EU
Institutions being subject to a separate set of rules than those applicable to the Member States.
6
At first sight, then, public procurement could look like barren ground for studies on the
evolution of public law within the EU from a transnational perspective.
Note: all websites last accessed on 25 September 2019.
1
See, for example, the European Procurement Law Series co-edited by S Treumer and R Caranta (first published
by DJØF and now by Edward Elgar) and the series linked to the project ‘Public Contracts in Legal Globalization’
under the coordination of B Auby (published by Bruylant), in particular R Noguellou and U Stelkens, Comparative
Law on Public Contracts (Bruylant 2010). There are also a number of discrete works, such as D Fairgrieve and F
Lichère (eds), Public Procurement Law. Damages as an Effective Remedy (Hart Publishing 2011); and
contributions to broader comparative endeavours, such as C Turpin, ‘Public Contracts’ in A von Mehren (ed),
International Encyclopedia of Comparative Law, vol VII (Brill – Nijhoff 2008) ch 4. See also S L Schooner,
‘Reflections on Comparative Public Procurement Law’ (2013-2014) 43 Public Contract Law Journal 1. The topic
is certainly not new; see G Langrod, ‘Administrative Contracts: A Comparative Study’ (1955) 4(3) American
Journal of Comparative Law 325-364.
2
The situation is not too different in the broader field of global administrative law, with the exception of some
notable efforts to analyse (a) the regulation of the procurement carried out by international organisations, such as
E Morlino, Procurement by International Organizations. A Global Administrative Law Perspective (CUP 2019)
and B Heuninckx, ‘Applicable law to the procurement of international organisations in the European Union’
(2011) 20(4) PPLR 103, and idem, ‘Forums to adjudicate claims related to the procurement activities of
international organisations in the European Union’ (2012) 21(3) PPLR 95; and (b) transnational public contracts
as modes of regulation of public/private interactions, such as M Audit and S W Schill, ‘Transnational Law of
Public Contracts: An Introduction’ in idem (eds), Transnational Law of Public Contracts (Bruylant 2016) 3-20;
and S W Schill, ‘Transnational Legal Approaches to Administrative Law: Conceptualizing Public Contracts in
Globalization’ (2013) NYU Law School Jean Monnet Working Paper JMWP 05/13.
3
For recent discussions within these parameters, see C H Bovis, ‘Public Procurement Regulation’ in H C H
Hofmann, G C Rowe and A H Türk (eds), Specialized Administrative Law of the European Union: A Sectoral
Review (OUP 2018) 476-508; S Díez Sastre, ‘Organisational Forms and Structures of the Public Procurement
Administration in the European Internal Market’ in F Velasco Caballero and F Pastor-Merchante (eds), The Public
Administration of the Internal Market (Europa Law Publishing 2015) 151-173. More broadly, see C Harlow and
R Rawlings, Process and Procedure in EU Administration (Hart Publishing 2014) ch 6.
4
For discussion on the rejection of a Commission’s Proposal that would have created a true network of authorities,
see P Cerqueira Gomes, ‘A Lost Proposal in the 2014 Public Procurement Package: Is there any Life for the
Proposed Public Procurement Oversight Bodies?’ in G S Ølykke and A Sanchez-Graells (eds), Reformation or
Deformation of the EU Public Procurement Rules (Edward Elgar 2016) ch 7.
5
The European Commission is, however, developing efforts towards creating networks for information exchange
regarding large infrastructure projects and amongst public procurement review bodies.
6
Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the
financial rules applicable to the general budget of the Union (OJ 2018 L 193/1).
2
My main purpose with this paper is to challenge that preconception of EU public
procurement law by concentrating on the emerging practice and regulation of trans-EU
collaborative procurement, which offer a fertile ‘living lab’
7
for the observation, theorisation
and critical assessment of important developments that can offer lessons for the wider field of
European public law.
8
By analysing the rules of Directive 2014/24/EU
9
that enable contracting
authorities from different Member States to collaborate in cross-border joint procurement,
10
I
seek to highlight the emergence of trans-EU public law as a new type of horizontal relationship
between Member States within the EU’s economic and legal space.
Before proceeding to the detailed critical discussion, Section II places the emergence
of trans-EU collaborative procurement in the broader context of the recent evolution of EU
procurement law as it concerns collaboration between contracting authorities, first at a national
level, and then from a transnational perspective. Section III then details the rules on
collaborative procurement involving contracting authorities from different Member States in
Directive 2014/24/EU. Against that background, I critically discuss the new rules on trans-EU
collaborative procurement from the perspective of European public law. I claim that the rules
show a hybrid approach between the emergence of a system based on European administrative
networks
11
and a system of ‘conflicts law’ for horizontal public-public relationships.
12
In
Section IV, I claim that this hybridity results from conceptual confusion and functional
assimilation of, on the one hand, administrative action oriented towards policy delivery and,
on the other, administrative action directly subjected to EU rules. Such confusion and hybridity
affected the development of the new rules and raise issues concerning the EU’s competence
for the adoption of the rules on trans-EU collaborative procurement in Directive 2014/24/EU.
I also argue that the de-regulation of trans-EU administrative relationships in the
context of collaborative procurement shows a conflicted approach and a difficult equilibrium
between, on the one hand, the facilitation of economic collaboration within the internal market
and, on the other, the respect for Member States’ administrative autonomy in the regulation of
their public sector. Section V deals with these tensions, mainly on the basis of the safeguard
foreseen in Article 39(1)II of Directive 2014/24/EU, according to which contracting authorities
shall not engage in trans-EU collaborative procurement ‘for the purpose of avoiding the
application of mandatory public law provisions in conformity with Union law to which they
7
The expression is used as shorthand for a space of practice innovation and normative co-production. For related
discussion, see K-H Ladeur, ‘The Emergence of Global Administrative Law and Transnational Regulation’ (2012)
3(3) Transnational Legal Theory 243-67.
8
This emergence keeps important parallels with the broader phenomenon of cross-border collaboration within the
EU. For discussion, see F Palermo, ‘The “New Nomos” of Cross-Border Cooperation’ in idem et al (eds),
Globalization, Technologies and Legal Revolution. The Impact of Global Changes on Territorial and Cultural
Diversities, on Supranational Integration and Constitutional Theory. Liber Amicorum in Memory of Sergio Ortino
(Nomos 2012) 71-90. See also B Caesar, ‘European Groupings of Territorial Cooperation: A Means to Harden
Spatially Dispersed Cooperation?’ (2017) 4(1) Regional Studies, Regional Science 247-54.
9
Directive 2014/24/EU on public sector procurement (2014 OJ L94/65, occasionally, the 2014 Directive). It forms
part of the 2014 Public Procurement Package (or the 2014 Package), which also comprises Directive 2014/23/EU
on concession contracts (2014 OJ L94/1) and Directive 2014/25/EU on utilities procurement (2014 OJ L94/243).
10
For an initial assessment, see C Risvig Hamer, ‘Regular Purchases and Aggregated Procurement: The Changes
in the New Public Procurement Directive regarding Framework Agreements, Dynamic Purchasing Systems and
Central Purchasing Bodies’ (2014) 23(4) PPLR 201. Cfr G Racca, ‘Joint Procurement Challenges in the Future
Implementation of the New Directives’ in F Lichère, R Caranta and S Treumer (eds), Modernising Public
Procurement: The New Directive (DJØF Publishing 2014) 225-54.
11
For general discussion of this approach, see P Craig, ‘Shared Administration and Networks: Global and EU
Perspectives’ in G Anthony et al (eds), Values in Global Administrative Law (Hart Publishing 2011) 81-116.
12
For a general introduction to this approach, see C Joerges, P F Kjaer and T Ralli, ‘A New Type of Conflicts
Law as Constitutional Form in the Postnational Constellation’ (2011) 2(2) Transnational Legal Theory 153-65.
3
are subject in their Member State’. This creates a model that markedly diverges from the more
general framework for cross-border collaboration through a European Grouping of Territorial
Cooperation (EGTC),
13
which I use as a benchmark for the analysis of the procurement rules.
I also advance arguments for a reconsideration of the (de)regulation of trans-EU collaborative
procurement in the EU, at least by way of soft law issued by the European Commission, which
could benefit from the learning derived from the different forms of experimental governance.
14
On the basis of the uncertainties surrounding trans-EU collaborative procurement and
the risks of race to the bottom that derive from the current (de)regulatory approach, I then
sketch the main functional guarantees required in the implementation of trans-EU procurement
projects to preserve the accountability and transparency of the mechanism, and to prevent an
erosion of the rights of economic operators participating in these procedures (Section VI). I
conclude with some of the lessons that the ‘living lab’ of trans-EU collaborative procurement
and its embryonic regulation can offer to European public law generally (VII).
II. EVOLVING EU PROCUREMENT LAW: INTRA-ADMINISTRATIVE, INTER-
ADMINISTRATIVE AND TRANS-EU PROCUREMENT COLLABORATION
EU law has progressively set rather prescriptive rules on the award of public contracts,
15
which
control the exercise of executive discretion by public buyers
16
with the aim of ensuring the
effectiveness of the internal market fundamental freedoms and EU-wide competition for public
contracts.
17
Given the transparency and procedural constraints they impose, the rules have at
times been seen as too rigid and potentially preventing some forms of intra-administrative
cooperation or delegation at domestic level. Their interpretation has progressively required the
Court of Justice of the European Union (the CJEU)
18
to establish the conditions under which
the EU procurement rules are not triggered by instances of administrative self-organisation (the
Teckal or in-house providing doctrine),
19
administrative cooperation (the Hamburg doctrine)
20
and administrative delegation (the Remondis or Hannover doctrine).
21
This case law has been
by and large consolidated in the 2014 Public Procurement Package,
22
which also introduced
some additional flexibility for these forms of administrative self-organisation and collaboration
and clarified that Member States are free to adopt decisions on self-organisation of their public
13
See E Evrard and A Engl, ‘Taking Stock of the European Grouping of Territorial Cooperation (EGTC): From
Policy Formulation to Policy Implementation’ in E Medeiros (ed), European Territorial Cooperation: Theoretical
and Empirical Approaches to the Process and Impacts of Cross-Border and Transnational Cooperation in Europe
(Springer 2018) 209-27. For extended analysis of broader aspects of cross-border territorial cooperation, see the
rest of that edited collection.
14
See C F Sabel and J Zeitlin, ‘Experimentalist Governance’ in D Levi-Faur (ed), Oxford Handbook of
Governance (OUP 2012) 169-84.
15
S Arrowsmith, ‘The Past and Future Evolution of EC Procurement Law: From Framework to Common Code?’
(2006) 35(3) Public Contract Law Journal 337-84.
16
For general discussion, see the contributions to S Bogojevic, X Groussot and Jörgen Hettne (eds), Discretion in
EU Public Procurement Law (Hart Publishing 2019).
17
Case C-553/15 Undis Servizi, EU:C:2016:935, para 28; Case C-144/17, Lloyd’s of London, EU:C:2018:78, para
33.
18
This case law was developed in the context of preliminary references under Art. 267 TFEU, so the case law
belongs to the Court of Justice strictly speaking. However, this article will make reference to the CJEU for
simplicity, and to make it more accessible to non-EU readers.
19
Case C-107/98 Teckal, EU:C:1999:562. The doctrine has been recently recast in Undis Servizi (n 17).
20
Case C‑480/06 Commission v Germany, EU:C:2009:357; Case C‑386/11 Piepenbrock, EU:C:2013:385.
21
Case C-51/15 Remondis, EU:C:2016:985.
22
Above (n 9). The in-house and public-public cooperation exemptions are regulated in Art 12 and the exemption
concerning the transfer of competences in Art 1(6) of Directive 2014/24/EU. None of them apply to the discussion
in this paper as, first, Art 39(1) explicitly saves the possibility of resorting to Art 12 on a cross-border collaboration
and, second, trans-EU collaborative procurement does not involve the transfer or delegation of competences.