Wish list for 2017: My Top 10 priorities for the European Commission’s future activity in public procurement

Now that 2016 is drawing to a close, and after having engaged in a large number of discussions and exchanges of views with academics and practitioners at a number of conferences, workshops and expert meetings during the year, I have sat down to write my wish list of where I would like the European Commission to concentrate its future activity in the area of public procurement. Some of these suggestions could also serve to set agendas at national level. although my preference would be for centralised action at EU level.

These suggestions only represent my personal views, and in particular do not bind the European Commission’s Stakeholder Expert Group in Public Procurement of which I am but a member. However, some of the suggestions are supported by other members of the group in their individual capacity, and these are issues which I will push for in the activities of the group in 2017.

My wish list of top 10 priorities for future action is as follows:

1. Ensure full and adequate transposition of the 2014 Public Procurement Package, and provide guidance on the direct effect of the substantive rules to support contracting authorities in Member States where transposition is being delayed. At the time of writing, 14 Member States have fully or partially failed to transpose the new Directives (see here, and take into account that Finland adopted transposition measures on 13 December 2016). The correctness and completeness of the transposition in the remaining Member States also triggers some questions. Working towards speedy and proper transposition across all EU Member States is of utmost importance in order to ensure that the intended benefits of the 2014 reform are unlocked. It is also relevant to ensure that the direct effect of the 2014 Public Procurement Package is ensured in the absence of transposition to domestic law.

2. Reform the Remedies Directives to coordinate them with the new rules in the substantive instruments comprising the 2014 Public Procurement Package.[1] In particular, further clarification needs to be provided on the remedies applicable to call-offs within framework agreements and dynamic purchasing systems, as well as for contract modification and contract termination disputes.

3. Provide additional guidance on the development of inter partes procedures where contracting authorities aim to take decisions that would imply the impossibility for undertakings and tenderers to participate or continue participating in tenders for public contracts. This is particularly relevant in relation to exclusion rules and the management of conflicts of interest, and could use the existing rules on the assessment of apparently abnormally low tenders as a blueprint.

4. Develop effective policies concerning procurement information. This should include provision of guidance on reporting obligations under Articles 84 and 85 of Directive 2014/24/EU, as well as developing the policy on public contract registries announced as part of the 2015 strategy ‘Upgrading the Single Market: more opportunities for people and business’ in a way that ensures an appropriate balance between transparency of procurement processes and the associated expenditure of public funds with the protection of commercial and competition-sensitive information.[2] This should be done in light of the transposition of Directive 2016/943/EU on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

5. Provide guidance on the interpretation of Article 12 of Directive 2014/24/EU and the interaction between the in-house and the public-public cooperation exemptions it consolidates. This should be done through a thorough revision of the 2011 Commission Staff Working Paper concerning the application of EU public procurement law to relations between contracting authorities. This guidance should also extend to Article 17 of Directive 2014/23/EU and to the related rules in Articles 28 to 30 of Directive 2014/25/EU.

6. Provide additional guidance on centralised and collaborative procurement, including an assessment of the competition risks and potential negative impacts of centralised and collaborative public procurement, and develop recommendations for the effective oversight of centralised and collaborative purchasing by both national competition authorities and audit/controlling authorities. This should include providing more transparency on the European Commission’s work with the CPBs Public Procurement Network, as well as on the status of the actions plan(s) underpinning the strategic goal of facilitating aggregation of demand.[3]

7. Provide guidance on the interpretation of Articles 72 and 73 of Directive 2014/24/EU concerning contractual modification and termination. In particular, provide guidance on the use of umbrella modification clauses and the interaction between different grounds of justification for contract modifications, as well as on the effects of contractual termination that are required in case of mandatory termination due to breaches of EU law. This should be coordinated with the reform of the Remedies Directive (above 2) in order to ensure consistency of legal effects derived from contractual ineffectiveness and contractual termination.

8. Provide additional guidance on the interaction between public procurement and State aid rules, and ensure the consistent application of the recent 2016 Commission Notice on the notion of State aid as referred to in Article 107(1) TFUE with public procurement enforcement. This particularly concerns the substantive tests applicable to the identification of cross-border interest/effects.[4] This also concerns additional guidance on the substantive standards applicable to the assessment of aid for SGEI and NESGI, where the interaction between the ECJ’s Judgments in Altmark (C-280/00, EU:C:2003:415), Spezzino (C-113/13, EU:C:2014:2440) / CASTA (C-50/14, EU:C:2016:56), and Zweckverband Tierkörperbeseitigung (C-446/14 P, EU:C:2016:97) is rather unclear.

9. Continue to support the transition towards eProcurement and the development of open access, free to use technical solutions and standards. The work of the Commission should concentrate on ensuring that technological barriers do not arise from the transition to eProcurement and that interoperability is ensured in both the short and the long run.[5] Work in this area could also include creating pilot experiments with public sector virtual markets on the basis of dynamic purchasing systems and electronic catalogues, which could be run entirely electronically.

10. Significantly reform the Internal Market Scoreboard for Public Procurement, so as to avoid embedding undesirable policy pushes, such as the unjustified push for aggregation of more than 10% of public sector procurement expenditure. Carefully assess the desirability and utility of similar ongoing projects in the Public Procurement Action Plan—such as “Developing an index for rating Contracting Authorities according to their performance ("Trip advisor")—and seriously consider abandoning them to concentrate on more useful initiatives.

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[1] See A Sanchez-Graells, “‘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 (Larcier, 2017) forthcoming. Available at https://ssrn.com/abstract=2821828.

[2] See A Sanchez-Graells, “Centralised Procurement Registers and their Transparency Implications”, Discussion Non-Paper for the European Commission Stakeholder Expert Group on Public Procurement, 19 September 2015. Available at http://www.howtocrackanut.com/blog/2015/09/why-are-public-contracts-registers.html.

[3] As briefly described in “Public buyers save money with cooperative procurement”, 1 December 2016, http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=9013.

[4] See A Sanchez-Graells, “Commission Notice on Notion of State Aid shows Contradictions with EU Public Procurement Rules, in Particular Concerning Aid and Contracts for Local SGEI”, 20 May 2016, http://www.howtocrackanut.com/blog/2016/5/20/commission-notice-on-notion-of-state-aid-shows-contradictions-with-eu-public-procurement-rules

[5] See P Ferk, “E-Procurement between EU Objectives and the Implementation Procedures in the Member States—Article 22(1) of the 2014 Directive”, in GS Ølykke & A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016) 101-124.

New paper: Competition Infringements and Procurement Blacklisting

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I have uploaded my last working paper of 2016 on SSRN. It is entitled "Competition Infringements and Procurement Blacklisting" and will appear in the Competition Law Journal next year. Its abstract is as follows:

In this article I explore the rules for the blacklisting of competition infringers under relevant EU and UK public procurement law, including their interpretation by the European Court of Justice. I also consider the practical difficulties for their enforcement by procurement professionals in the UK and suggest additional roles that the Competition and Markets Authority (CMA) and Crown Commercial Service (CCS) could have in order to facilitate their effectiveness. Finally, I also stress the existence of a trade-off between a more active enforcement of procurement blacklisting rules and the attractiveness of the CMA’s leniency policy. By way of concluding remarks, I set out a blueprint for targeted policy reform. I submit that this should include the development of mechanisms for the provision of CMA support to procurement professionals that identify indicia of bid rigging, the development of a policy on the imposition of procurement blacklisting as a sanction for competition law infringers, and the creation of a UK-wide blacklisting register operated by CCS.

The full reference for the paper is: Sanchez-Graells, Albert, Competition Infringements and Procurement Blacklisting (December 14, 2016). Forthcoming in the Competition Law Journal.. Available at SSRN: https://ssrn.com/abstract=2885278.

ECJ avoids providing guidance on intensity of judicial review of procurement decisions by sticking to strictly formalistic approach: The Gaping hole remains (C-171/15)

In its Judgment of 14 December 2016, Connexxion Taxi Services, C-171/15, EU:C:2016:948, the European Court of Justice (ECJ) has provided clarification on whether contracting authorities can decide to subject their decisions to exclude economic operators from procurement procedures to a proportionality assessment even where such assessment would deviate from the strict rules created in the tender documentation by the contracting authorities themselves.

In the case at hand, a Dutch contracting authority had published tender documents that seemed to create an automatic obligation to exclude by stating that: 'A tender to which a ground for exclusion applies shall be set aside and shall not be eligible for further (substantive) assessment'. However, the contracting authority subsequently sought to rely on generally applicable Dutch administrative law (in particular, the Explanatory Memorandum of the law transposing the 2004 public procurement Directive) to subject the exclusion decision to a proportionality assessment. On the basis of that proportionality analysis, the contracting authority decided not to exclude the tenderer and to award it the contract.

This triggered the challenge by a competing tenderer, which claimed that, having found that the tenderer had been guilty of grave professional misconduct, the contracting authority was not in a position to make an assessment of proportionality. That assessment would have already been carried out by including the misconduct as an absolute ground for exclusion in the descriptive document. Given the wording of the latter, it was argued that it would be contrary to the principles of public access, transparency and equality in matters of administrative procurement for the contracting authority to have the power to assess the proportionality of the ground for exclusion.

The Dutch referring court asked the ECJ to consider whether Art 45(2) of Directive 2004/18/EC precluded a contracting authority from being obliged to assess under national law, and in accordance with the principle of proportionality, whether a tenderer which had been guilty of grave professional misconduct should be excluded from a contract. The referring court put particular stress on the fact that the ECJ had not adjudicated on the importance to be attached to the fact that, in the tender conditions, the contracting authority had provided for the rejection, without any examination of the substance, of any tender to which a ground of exclusion applies. In answering those questions, the ECJ decided to stick very closely to two of its lines of case law that, ultimately, create a very difficult (dis)functional situation.

First, following precedents in La Cascina and Others, C‑226/04 and C‑228/04, EU:C:2006:94, and in Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, the ECJ reiterated that the discretionary exclusion grounds regulated in Art 45(2) Dir 2004/18 (and now in art 57(4) Dir 2014/24) do 'not provide for uniform application at EU level of the grounds of exclusion it mentions, since the Member States may choose not to apply those grounds of exclusion at all or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. In that context, the Member States have the power to make the criteria laid down in Article 45(2) less onerous or more flexible' (C-171/15, para 29). This led the ECJ to establish that

31 As far as concerns the grounds for excluding a tenderer which has been guilty of grave professional misconduct from a contract, it is clear from the order for reference that [Dutch] legislation requires the contracting authority concerned, which establishes that the tenderer has been guilty of such misconduct, to determine, in accordance with the principle of proportionality, whether the tenderer should in fact be excluded.
32 Thus, it appears that that assessment of the proportionality of the exclusion makes the application of the ground of exclusion relating to grave professional misconduct laid down in Article 45(2)(d) of Directive 2004/18 more flexible ... Furthermore, it follows from recital 2 thereof that the principle of proportionality applies in a general manner to public procurement procedures (C-171/15, paras 31-32, emphasis added).

Ultimately, then, national legislation which requires a contracting authority to assess, in accordance with the principle of proportionality, whether it is in fact appropriate to exclude from a public contract a tenderer which has been guilty of grave professional misconduct is compatible with EU public procurement law (C-171/15, para 33).

Second, and in stark contrast with this seemingly functional and principles-oriented interpretation of the rules in Directive 2004/18/EC, the ECJ then moved on to adopt a very formalistic approach when considering the specific situation where the contracting authority would have excluded the possibility of such proportionality assessment in the tender documentation by establishing that exclusion on specific grounds would not be subjected to any substantive assessment. It may have been relevant at this point to know with more precision whether that would have been illegal under Dutch law for the tender documentation could be seen as contra legem (as, in my view, it would have been eg under Spanish law due to the public administration's duty to conduct its business with subjection to the applicable laws and regulations).

Be it as it may, the ECJ framed the issue in the following terms:

 36 It is conceivable that, when the contract documents are drafted, the contracting authority concerned may take the view, in accordance with the nature of that contract, the sensitive nature of the services which are its subject, and the requirements of professional honesty and reliability of the economic operators which arise from that, that the commission of grave professional misconduct must result in the automatic rejection of the tender and the exclusion of the tenderer at fault, provided that the principle of proportionality is observed when the seriousness of that misconduct is assessed.
37 Such a clause, inserted into the contract documents in unambiguous terms ... enables all economic operators which are reasonably well informed exercising ordinary care to be apprised of the requirements of the contracting authority and the conditions of the contract so they may act accordingly (C-171/15, paras 36-37, emphasis added).

I find these passages, and in particular para 36, very confusing. It seems to indicate that the contracting authority, despite the discretion it has in deciding to include as applicable the ground of discretionary exclusion due to grave professional misconduct in the tender documentation or not, remains bound to ensure that 'the principle of proportionality is observed when the seriousness of that misconduct is assessed'. That would, in and of itself, exclude the possibility of predetermining that the exclusion on that ground will be absolute and not subjected to any further (substantive) assessment. Therefore, making this be followed by para 37, where the contrary underlying position exists in the determination that setting a clause of automatic exclusion in unambiguous terms provides tenderers with a clear view of the requirements, is at least disconcerting.

The ECJ then decided to follow very formalistic precedents whereby 'the contracting authority must comply strictly with the criteria which it has itself laid down (see, to that effect, judgment of 10 October 2013, Manova, C‑336/12, EU:C:2013:647, paragraph 40 and the case-law cited) in the light, in particular, of Annex VII A, paragraph 17, to Directive 2004/18' (C-171/15, para 38). It also added that, following its more recent Judgment in Pizzo, C‑27/15, EU:C:2016:404, 'the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the bids of all tenderers must be subject to the same conditions' and that 'the obligation of transparency requires that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question' (for discussion, see here).

On the basis of this, the ECJ creates an argument whereby tenderers from different Member States will be less likely to submit tenders when they are affected by an exclusion ground because they may not be aware of the possibility of their exclusion actually being subjected to a proportionality assessment despite the explicit terms of the tender documents, which the ECJ considers domestic tenders would do. From that, the ECJ concludes that 'the assessment of the exclusion at issue in the light of the principle of proportionality, where the tender conditions of the contract concerned provide for the rejection of tenders which are covered by such an exclusion clause without any assessment of that principle, is liable to place the economic operators concerned in an uncertain position and adversely affect the principle of equal treatment and compliance with the obligation of transparency' (see C-171/15, paras 41-43). Ultimately, then, the ECJ considers that the decision to subject the decision whether to exclude the tenderer to a proportionality assessment despite the explicit terms of the tender documents was contrary to EU public procurement law.

Critical remarks

I find the Connexxion Taxi Services Judgment very confusing because it seems to answer two interconnected questions about the relevance and effectiveness of the general principles of public procurement in an intrinsically contradictory manner, and it seems to me that the ECJ has taken another step down the formalist road. In the case at hand, and following the proposals of Advocate General Campos Sánchez-Bordona (see here), I considered that it must be right that contracting authorities are always under a general obligation to act in a proportionate manner and, consequently, each decision they adopt needs to be proportionate under the circumstances and pro-competitive, and that ultimately 'a contracting authority must retain the power to assess, on a case-by-case basis, the gravity of the circumstances that would lead to exclusion of the tenderer. And ... it must also balance them against the effects that such exclusion would have on competition' [see A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 293, references omitted].  

Despite the fact that the Connexxion Taxi Services Judgment sticks to the traditional formalist approach whereby the Court does not allow contracting authorities to deviate from the strictures of the published tender documentation, and this must at this stage not come as a surprise, the decision strikes as particularly odd because the ECJ does not seem to give much weight to the general principle of proportionality--either as enacted under the disputed Dutch rules, or more generally under the EU public procurement rules themselves--despite having accepted that the general principle can (and should?) control all procurement decisions. Remarkably, the ECJ deviated from the more progressive and flexible approach advanced by the AG and also created a strange focus of analysis by moving from the assessment of the decision of the contracting authority to the potential incentives of participation for non-domestic economic operators in a way that I also find very formalistic and potentially misguided.

Considering Connexxion Taxi Services, Manova and other precedents together, what seems clear is that contracting authorities can only reduce the scope of their discretion by self-imposed restrictions published in the tender documents. Thus, they would be better off by publishing bare bones tender documents and then exercising administrative discretion subject only to compliance with general principles of public procurement, as well as applicable domestic rules. However, this would fly on the face of Pizzo where the way the contracting authority justifies its decisions does not result immediately from the tender documents, which then gives contracting authorities the contrary incentive to reiterate all domestic rules in the tender documentation.

Other than contradictory, these sets of case law are also extremely formalistic and ultimately built on a non-functional obsession with the integration of the single market that can get on the way of the development of sound public procurement practice. Ultimately, the general principles of public procurement should be there to create sufficient checks and balances and, in their generality, they should rank higher than tender documents. Actually, it is not foreign to the ECJ case law to consider that tender requirements that are disproportionate or discriminatory cannot be included in the tender documentation (or need to be set aside, or ultimately determine the ineffectiveness of the procurement exercise). Thus, it would be desirable for that logical hierarchy to remain a constant, even if it means that cross-border participation in procurement processes does not come at zero transaction costs and that interested undertakings need to make themselves familiar with the domestic rules of the jurisdiction in which they are tendering.

Beyond that, it also seems to me that the ECJ is inadvertently creating an absolute need for an exclusion-related special procedural phase, where tenderers other than those affected by potential exclusion have a justiciable right to force the contracting authority to review the circumstances of other tenderers. This is not necessarily an overall undesirable development, but it can be problematic in many ways, not least because the EU substantive and procedural rules are not adapted to that function [see A Sanchez-Graells, “‘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 (Larcier, 2017) forthcoming]. 

Last, but not least, it is also worth noting that, by answering in the way it has, the ECJ has avoided the need to provide clarification on the requirements of intensity of judicial review of public procurement decisions at Member State level, on which AG Campos Sánchez-Bordona had put together a rather stringent and not uncontroversial proposal (see here). Unfortunately, then, given the ECJ's unwillingness to answer that question, we will continue puzzledly looking at the gaping hole that Prof Caranta identified in the ECJ's jurisprudence concerning public procurement remedies [see R Caranta, 'Many Different Paths, but Are They All Leading to Effectiveness?', in S Treumer & F Lichère (eds), Enforcement of the EU Public Procurement Rules, vol 3 European Procurement Law Series (Copenhagen, DJØF Publishing, 2011) 53, 84].

 

Joint control of in-house entities: ECJ issues additional guidance on limits to exceptions to public procurement obligations, but are they cumulative? (C-553/15)

In its Judgment of 8 December 2016 in Undis Servizi, C-553/15, EU:C:2016:935, the European Court of Justice (ECJ) offered additional guidance on the limits of the in-house exception to the obligation to tender public contracts subjected to the relevant EU rules, thus offering an extension of its well-known Teckal  case law (C-107/98, EU:C:1999:562) [for general discussion, see A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 265-272].

Even if the case was decided in relation to Directive 2004/18/EC--or, more precisely, solely on the basis of the Teckal case law--the Undis Judgment may be relevant for the future interpretation of Article 12 of Directive 2014/24/EU and, in particular, regarding the accumulation of the in-house and the public-public cooperation exceptions that it regulates. 

On close reading, Undis Servizi is a rather puzzling case, not because of the answers provided by the ECJ, but due to the way the questions are structured and answered, as well as due to the scarcity of detail in the description of the factual circumstances of the case and the specific claims raised by Undis. It is also surprising that there was no Advocate General Opinion, particularly in view of the specific queries concerning the future interpretation of Art 12 Dir 2014/24 raised by the referring court. The following reflects my understanding of the situation as described by the ECJ--which may however not reflect the reality of the Italian case that triggered the Judgment.

Background and general remarks

The traditional position under the Teckal doctrine has been to exceptionally exempt the direct award of contracts to in-house entities from compliance with the EU rules only where the contracting authority or authorities exercises control over that entity that was similar to the control exercised over its (their) own departments, and where the controlled entity carries out the essential part of its activities with the controlling authority or authorities (or, conversely, where the controlled entity only engages in ancillary or marginal market activities).

On this occasion, the ECJ focused on the second element of the Teckal test (ie in the determination of the intensity of the non-public activities), which has traditionally been understood to require the volume of activities developed by the in-house entity in the market (ie, outside of the perimeter of the relationships covered by the similarity of control of its public shareholders) to be ancillary and marginal. This has now been (somehow) codified in Art 12 Dir 2014/24, which allows the in-house entity to carry out up to 20% of its activities outside the performance of tasks entrusted to it by the controlling contracting authority (or authorities) or by other legal persons controlled by that contracting authority (or authorities).

The need to evaluate the intensity of the public/non-public activities of the controlled entity triggers a difficulty in the calculation of the relevant turnover for the purposes of the assessment of the traditional Teckal requirement that the in-house entity carries out the essential part of its activities with the controlling authority or authorities, as well as the new statutory 80/20 threshold under Art 12 Dir 2014/24. In particular, the issue concerns the interpretation and application of the more developed Carbotermo test, according to which ‘the decisive turnover is that which the undertaking in question achieves pursuant to decisions to award contracts taken by the supervisory authority, including the turnover achieved with users in the implementation of such decisions’ (C‑340/04, EU:C:2006:308, para 65, emphasis added).

This may trigger some difficulties in cases of mixed in-house and public-public cooperation, where a group of contracting authorities decide to engage in public-public cooperation a la Commission v Germany (C-480/06, EU:C:2009:357), and then the leading contracting authority proceeds to an in-house award for the execution of the activity in the common interest to one of its (solely or jointly) controlled entities. In case some of the contracting authorities doe not participate in the (joint) control of the in-house entity, the application of the Carbotermo test raises issues as to whether any payments that may be made to the in-house entity by the non-controlling contracting authority fall within the category of 'turnover achieved by users as a result of the decision to award contracts by the controlling contracting authority' or not. In a nutshell, I think that this was the legal difficulty raised by Undis, even if this is not formulated in so many words and, in fact, the public-public cooperation element of the case is rather fuzzy.

Upon analysis of the circumstances of the Undis case (discussed below), the ECJ determined that, despite the fact that they were provided to other contracting authorities--ie not carried out in the (private) market--some of the activities undertaken by the in-house entity as a result of a direct requirement had to be considered 'activities carried out for third parties' (that is, activities which run against a finding that the controlled entity carries out the essential part of its activities with the controlling authority or authorities). This comes to clarify that the distinction of the relevant turnover by its origin follows a rather a narrow understanding of the 'circle of influence' of the controlling entities over the in-house undertaking--or, in other words, it follows the understanding that the in-house entity needs to be an instrument of (self)organization of the relevant contracting authority or authorities. This is also strongly linked in Undis to the peculiarity that the contracting authority imposing the obligation on the in-house entity was not part of the circle of jointly controlling authorities, but rather an administrative aggregation of those and other contracting authorities (ie a higher administration).

In particular, it is worth stressing that the ECJ ruled that 'in order to determine whether the contractor carries out the essential part of its activity for the contracting authority, including local authorities which are its controlling shareholders, an activity imposed on that contractor by a non-shareholder public authority for the benefit of local authorities which are also not shareholders of that contractor and do not exercise any control over it must not be taken into account, since that activity must be regarded as being carried out for third parties'. The following tries to clarify the reasons for this unsurprising finding, as well as the implications it may (or not) have in the interpretation of Art 12 Dir 2014/24.

UNDIS: Is IT Carbotermo plain and simple?

In Undis, the factual situation was as follows. Cogesa was a wholly public capital company owned by several municipalities of the Abruzzo Region (Italy). On 30 October 2014, the local authorities with shares in Cogesa entered into an agreement to exercise jointly over that body a control similar to that exercised over their own departments. By Integrated Environmental Authorisation No 9/11, the Abruzzo Region required Cogesa, in accordance with the principles of self-sufficiency, proximity and subsidiarity, to treat and recover the urban waste of certain municipalities of that region which were not shareholders of that company (see C-553/15, paras 11-13).

Undis, a potentially interested tenderer in the waste management contracts directly awarded to Cogesa, challenged these schemes on the grounds that the entrustment to Cogesa was contrary to the Teckal doctrine. For our purposes, it is relevant to stress that Undis challenged, in particular, that the criterion of intensity of the public/non-public activities of Cogesa was met, on the basis that 'Cogesa’s financial statements covering the years 2011 to 2013 indicated that only 50% of its overall activity had been performed with shareholder local authorities, given that activities carried out for the benefit of non-shareholder municipalities had to be included in that overall activity' (C-553/15, para 15).

In short, then, the legal issue for the ECJ was to determine whether the direct requirement by the Abruzzo Region (which did not itself hold any shares) for Cogesa to manage waste of municipalities in the region other than its own shareholders could be saved from a finding that it implied an illegal direct award under the EU rules because, even if the criterion of similarity of control was met (which was also disputed), Cogesa was not carrying out the essential part of its activities with its controlling authorities. In that regard, and after stressing that the in-house doctrine must be constructed narrowly because it creates an exception to the general rules and objectives of EU public procurement law, the ECJ determined that

32 ... it is essential that the contractor’s activity be principally devoted to the controlling authority or authorities; the nature of any other activity may only be marginal. In order to determine whether that is the case, the court having jurisdiction must take into account all the facts of the case, both qualitative and quantitative. In that regard, the relevant turnover is the turnover that that contractor achieves pursuant to the award decisions taken by that or those controlling authorities ...
33      The requirement that the person at issue performs the essential part of its activities with the controlling authority or authorities is designed to ensure that Directive 2004/18 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market, and therefore liable to be in competition with other undertakings. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling municipal authority or authorities, if it can still carry out a large part of its economic activities with other operators. By contrast, where that undertaking’s services are mostly intended for that authority or those authorities alone, it seems justified that that undertaking should not be subject to the restrictions of Directive 2004/18, since they are in place to preserve a state of competition which, in that case, no longer has any raison d’être ...
34      ... any activity of the contractor which is devoted to persons other than those which control it, namely persons without any relationship of control in regard to that entity, including public authorities, must be regarded as being carried out for the benefit of a third party.
35      Consequently ... the local authorities which are not shareholders of Cogesa must be regarded as third parties. ... there is no control relationship between those local authorities and that company, with the result that the specific internal link between the contracting authority and the contractor, which according to the case-law of the Court justifies the exception for ‘in-house’ awards, is lacking.
36      Therefore, in order to determine whether Cogesa performs the essential part of its activity with the local authorities which control it, the activity which that company devotes to non-shareholder local authorities must be regarded as being carried out for the benefit of third parties. It is for the referring court to examine whether that latter activity can be regarded as merely marginal in comparison with the activity of Cogesa with the controlling local authorities, in accordance with the Court’s case-law on so-called ‘in-house’ awards.
37      That finding cannot be invalidated by the fact ... that Cogesa’s activity carried out for the benefit of the non-shareholder local authorities is imposed by a public authority, which is also not a shareholder of that company. Although it imposed that activity upon Cogesa, it is apparent from the information in the decision to refer that that public authority is not a shareholder of that company and does not exercise any control over it within the meaning of the Court’s case-law on so-called ‘in-house’ awards. In the absence of any control by that public authority, the activity which it imposes on Cogesa must be regarded as an activity carried out for third parties (c-553/15, paras 32-37, references omitted and emphases added).

This seems to me to be a clearly predictable answer to the preliminary reference by the ECJ, and one that is in line with its Teckal-Carbotermo case law, which was however designed for straightforward situations of vertical and direct (sole or joint) control by the contracting authority over the in-house entity. However, the applicability of this test under Art 12 Dir 2014/24 may create problems if the ECJ does not alter its interpretive approach.

Art 12 Dir 2014/24: how do we square the new circle?

Firstly, it seems problematic to consider that the Undis refinement of the Carbotermo test will survive the entry into force of the rules in Dir 2014/24. In that regard, it is necessary to stress that the transition from the simple in-house model in the Teckal case law to the more complex in-house architecture in Dir 2014/24 now allows for inverted and indirect control relationships. In particular, under Art 12(2) Dir 2014/24, the control criterion is deemed to also apply where a controlled legal person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person. The situation can be further complicated in cases of public-public cooperation under Art 12(4) Dir 2014/24 that may then incorporate some elements of in-house under Art 12(1) or Art 12(3) Dir 2014/24.

In that regard, it would seem that the functional criterion set by the Undis Judgment--as was the case in Carbotermo--is that the split between essential/ancillary or 80/20 levels of activity needs to follow precisely the contracts which direct award is saved by the in-house rules. Or, in other words, that the essential part of the activities (or 80% of turnover) needs to be achieved within the 'circle of influence' of the controlling entities (and its/their extended 'public-house') and the in-house undertaking.

Secondly, the fact that the Undis Judgment relies rather heavily on the point that the Abruzzo Region did not hold shares in Cogesa is troubling and somehow confusing (see para 37). I struggle to see how the ECJ could have decided that should the Region hold shares in its capital, it could then entrust Cogesa with the waste services of municipalities that did not themselves hold shares, this could be exempted from the EU rules and this would then make that activity not be classified as 'activities carried out for third parties'. Or, in other words, that in the future the ECJ could consider exempted from compliance with Dir 2014/24 the direct awards carried out by a contracting authority for the provision of services for other contracting authorities that do not have joint control over the in-house undertaking (then under Art 12 Dir 2014/24) if the 80/20 turnover split is respected--bearing in mind that the turnover of those activities would not be deemed to derive from 'activities carried out for third parties'.

This would seem to be in stark contrast with the other position held by the ECJ in Cogesa, whereby 'any activity of the contractor which is devoted to persons other than those which control it, namely persons without any relationship of control in regard to that entity, including public authorities, must be regarded as being carried out for the benefit of a third party' (para 34). But this could aim to be saved through a joint or cumulative application of the in-house and public-public exemptions, in particular by stressing that the market activity thresholds in Art 12(1) & (3) for the purposes of the in-house exception refer to the volume of activity of the controlled entity, whereas the threshold in Art 12(4) for the purposes of the public-public cooperation exemption requires that 'the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the cooperation'. In my view, this would be a functionally incorrect reading of the new rules, but one that could carry some weight from a positivistic interpretation.

Ultimately, I guess that my confusion is about the likely way in which the ECJ will see the interaction of the in-house exemption in Art 12(1) to (3) and the public-public exemption of Art 12(4) Dir 2014/24. Read a contrario, para 37 of Undis may be seen as an indication that the accumulation of both exemptions is possible (which I would not favour, from the perspective of avoiding distortions of competition and the exclusion of significant volumes of public expenditure from EU public procurement rules and the ensuing checks and balances). It may also be just a mirage and that the ECJ will keep both exceptions separate in the future following the approach in para 34 of Undis (for which I would vouch). Either way, I also see increasing risks of State aid in these scenarios [on which see also GS Ølykke, "Commission Notice on the notion of state aid as referred to in article 107(1) TFEU - is the conduct of a public procurement procedure sufficient to eliminate the risk of granting state aid?", P.P.L.R. 2016, 5, 197-212]. Definitely a space to watch.

Project Completed: Full Commentary to UK Public Contracts Regulations in Open Access

Given the time of the year, when to do lists get dusted off and rearranged to cram in all these things we thought we would do 'by the end of the year', completing a 2-year research project feels really good. I can't but feel proud of and accomplished with the publication of the Public Contracts Regulations Commentary co-authored with Dr Pedro Telles [Albert Sanchez-Graells & Pedro Telles, (2016) Commentary to the Public Contracts Regulations 2015, available at: www.pcr2015.uk].

As Pedro says, we will carry on working on its improvement and update as things develop, and we would appreciate feedback and comments on how to make it more relevant for practitioners, challenging for academics and accessible for students (not an easy mix). So please be in touch.

Framework agreements should not be used improperly or in such a way as to prevent, restrict or distort competition [guest post* BY DR KIRSI-MARIA HALONEN]

A case from Supreme Administrative Court in Finland KHO 2016:182

The tension between centralization, large framework agreements and the competition principle has as of lately been increasingly discussed by academics, but also by national legislators. The new Procurement Directive 2014/24 aims, among other objectives, to enhance SME participation in public tenders by setting out rules on the division into lots. These issues have not yet been directly addressed in the Court of Justice case law. Nevertheless, in the recent ruling KHO 2016:182, the Finnish Supreme Administrative Court (korkein hallinto-oikeus) enforced the principle that “[f]ramework agreements should not be used improperly or in such a way as to prevent, restrict or distort competition”, which is codified in s.31(2) of the current Finnish Act on Public Contracts (laki julkisista hankinnoista 2007/348) and included in the recital (61) of Directive 2014/24. In this regard, the Supreme Administrative Court found that the decision to award “too-large” a framework agreement for health care and hospital supplies created barriers to bidding for most undertakings and was unduly restricting competition. It thus cancelled the decision (for those readers who can read either Finnish or Swedish, you can reach the case in Finnish and in Swedish). 

This case, regardless of being handled in one of the smallest EU member states by population and with a language regime not easily accessible for others, has created a lot of discussion among practitioners and academics alike. Therefore, Albert kindly asked me to shed some light on this case, where the competition principle has finally broken into the Finnish public procurement law regime and decreased contracting authority’s level of discretion regarding the terms of a competition-restrictive public tender [for which he has been constantly arguing, see A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 355 and ff, specifically on framework agreements].

TENDER PROCEDURE

In the case at hand, KL-Kuntahankinnat Oy, a central purchasing body for Finnish municipalities, run, on behalf of a hospital district and three municipalities, a framework agreement award procedure on health care and hospital supplies of 12 different product categories including stock-management and home delivery services. According to the terms of the call for tenders, other clients of KL-Kuntahankinnat Oy could also participate in the framework agreement at a later stage. The list of potential “other clients” of KL-Kuntahankinnat Oy was rather vast, and it included, among others, all Finnish municipalities. The framework agreement envisaged term was of four years.

The bidders could not tender for separate lots, but were rather required to submit a full-scale bid covering stock-management and home delivery services and all 12 product categories with a minimum of 5,000 items. As a cherry on top, this framework agreement on all possible health care and hospital supplies (and with the potential to have all Finnish municipalities or hospital districts as clients) was going to be awarded only to a single economic operator. In short, then, the framework agreement was bound to create a funnel for all hospital and health care supplies to be concentrated on a single supplier for a period of 4 years.

When submitting their bids, bidders were to provide two references on contracts of similar nature for the past three years. Both of these references were required to include products of at least eight of the 12 product categories included in the current contract award. Additionally, one of these references was required to include stock-management services. It soon emerged that the requirement of references that would cover eight categories could not be met by most of the potentially interested bidders. A majority of potential bidders only operated within one, two or maximum three product categories. As a result, these reference requirements led to the exclusion of all bidders except for two wholesale distributors of health care supplies.

MARKET COURT (FIRST INSTANCE)

Four bidders excluded from the contract award procedure initiated judicial proceedings in the Finnish Market Court arguing that the central purchasing body KL-Kuntahankinnat Oy had not only breached the principle of non-discrimination but also unduly restricted competition. The Market Court rejected the claims and considered that the central purchasing body had discretion over the product categories to be included in the framework agreement, as well as on whether or not to divide the contract into lots. In accordance with the arguments presented by the central purchasing body, the Market Court accepted that any economic operator had a chance to build consortiums or arrange for the coverage of missing product categories through sub-contracting. In addition, the Market Court did not find the reference requirements disproportionate, given the account the value and extent of the framework agreement.

SUPREME ADMINISTRATIVE COURT

The four companies appealed against the Market Court’s decision to the Finnish Supreme Administrative Court. They argued that KL-Kuntahankinnat Oy’s tender procedure and the ensuing framework agreement discriminated (ie de fact excluded) all economic operators other than wholesale distributors, and that this led to an undue restriction of competition.

In the joint appeal of Bayer Oy, Coloplast Oy, Oy SCA Hygiene Products Ab and Steripolar Oy, these companies submitted that the 5,000 products included in the framework did not form a coherent subject matter of a contract. The new agreement was significantly broader than any earlier framework agreement, combining products that previously were purchased through 10 different contracts or framework arrangements. Consequently, only two wholesale distributors had a true chance even to submit a bid in compliance with the rules set out in the call for tenders. The other bidders had no chance to succeed as there was no possibility to tender for separate lots.

The companies emphasized that the arguments presented by the contracting authority on the possibility to build consortiums or resort to sub-contracting in order to fulfill requirements were not reasonable or feasible, as it would have required a co-operation of 10-12 different companies or with the wholesale distributors themselves. Establishing a large consortium with both multinational companies and SMEs would have required a lot of time, money and effort, but also a common IT-system, customer service function and logistics.

1. The need to identify the users of the framework agreement

The Supreme Administrative Court stated that a contracting authority has an obligation to provide adequate information on the contract to be awarded already in the contract notice. By reserving a possibility for any other Finnish municipality and other contracting authorities to enter into the framework agreement at a later stage, the central purchasing body had breached the principle of openness and transparency by failing to provide adequate information on the scope of the framework agreement in question.

2. Restriction of Competition

The central purchasing body, KL-Kuntahankinnat Oy, argued in the Supreme Administrative Court that it had defined the scope of the framework agreement based on the needs of its clients. The award of the whole framework agreement to a single provider was considered to be the most economically advantageous alternative. The central purchasing body objected the claims on undue restriction of competition emphasizing that it had informed the potential bidders of the terms of the contract award in advance and encouraged them to establish consortia or sub-contracting arrangements in order to meet the requirements included in the call for tenders.  

The Court did not support such views and stated that the scope of contract and the requirement of a common IT-system, logistics and customer service, was too extensive to ensure equal opportunities of economic operators to offer supplies and services. Consequently the requirements set out in the call for tenders had led to an undue restriction of competition. According to the Court, the possibility to rely on the capacities of others did not remove the discriminatory, disproportionate and competition restrictive features of the tender procedure. These negative effects of the framework agreement with a single provider were considered especially severe due to the length of the contract term of four years.

CONCLUDING REMARKS

The Supreme Administrative Court’s ruling on the relation of the competition principle and large framework agreements will surely give a lot of food for thought, especially within central purchasing bodies and large volume contracting authorities. It is still a reality that foreign undertakings rarely submit bids called by Finnish contracting authorities. Regardless of the rules applied to the single market, in a rather small market at the North-East border of Europe, the relevant market is often in practice equivalent to the domestic market. Hence, the consequences of closing the Finnish market for four years could likely lead to closing down businesses and market exit by a number of economic operators. This can hardly be seen as the most economically advantageous solution for any society.

The Supreme Administrative Court’s ruling must therefore be praised, not only from a competition perspective, but also for enhancing transparency by setting rules on the identification of the actual users of the framework agreements. This is necessary in order to avoid framework agreements that could potentially be used by any public authority within any member state, bearing in mind that the amount of large framework agreements are likely to increase in the future as Directive 2014/24 sets out a possibility to purchase through any central purchasing body situated in any member state. 

Kirsi-Maria Halonen

The author of this post,  Dr. Kirsi-Maria Halonen holds a Ph.D. in Public Procurement Law and is currently working as a University Lecturer in Commercial Law at the University of Lapland, Finland. Her Ph.D. dissertation concerned the consequences of contractual ineffectiveness of a public contract between contracting parties. She is a member of the European Procurement Law Group (EPLG), the President of Finnish Public Procurement Association and an editorial board member of the Swedish Public Procurement Law Journal (Upphandlingsrättslig tidskrift, UrT) and a Finnish law journal on commercial law, Liikejuridiikka.

In addition to public procurement law, Kirsi-Maria is interested in contract law, tort law, corruption and transparency matters as well as state aid rules. She is the author of several articles (both in English and in Finnish) and a few books (in Finnish). Currently she is working in a research project for the Swedish Competition Authority (Konkurrensverket) on separate operational units within contracting authorities. Below some selected publications in English by the author:

K-M.Halonen, Disclosure Rules In EU Public Procurement – Balancing Between Competition and Transparency, the Journal of Public Procurement, Vol. 16, Number 4, Winter 2016, pp. 528–553.

K-M.Halonen, Is the remedy of contractual ineffectiveness truly effective in Finland? EPPPL - European Procurement & Public Private Partnership Law Review 4/2015, pp. 310–315.

K-M.Halonen, The liability of a contracting authority for an infringement of public procurement rules leading to a contract’s ineffectiveness- A Finnish approach, Upphandlingsrättslig tidskrift (UrT) 3/2015, 227–245.

K-M.Halonen, Shielding Against Damages for Ineffectiveness: The Limitations of Liability Available for Contracting Authorities - A Finnish Approach. Public Procurement Law Review (P.P.L.R.) 2015, 4, 111-121.

* Guest blogging at HTCAN: If you would like to contribute a blog post for How to Crack a Nut, please feel free to get in touch at a.sanchez-graells@bristol.ac.uk. Your proposals and contributions will be most warmly welcomed!

 

 

EU law-making in the shadow of the CJEU case law: looking at the “trilogue” black box

This blog first appeared in Elgar Blog on 7 December 2016 as part of our promotion of the recently published book Grith Skovgaard Ølykke and Albert Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016). You can now also read Chapter 1: The EU legislative process. An introduction from a political science perspective free on Elgaronline.

After six decades of economic and legal integration, when the European Union (EU) seeks to adopt new rules or to revise existing ones, it hardly ever operates on a clean slate. EU law-making is not only constrained by the political and economic realities of the time, but also by the pre-existing acquis communautaire of rules and general principles as interpreted by the Court of Justice of the European Union (CJEU). By any account, the CJEU has been a great force in the development of EU law, and its case law has pushed the policy-making agenda in rather clear, if controversial ways. EU law-makers thus operate in the shadow of the CJEU case law. This influences law-makers’ starting points and conditions the final solutions to be politically agreed, which will unavoidably be open to scrutiny (and quashing) by the CJEU.

In that space amongst the shadows of the CJEU case law, EU law-makers interact in an increasingly informal manner. They seek ways of flexibilising the legislative process so as to achieve easier and swifter compromises and overcome the criticism of immobilism, sometimes at the cost of renewed criticism of a democratic deficit that the Lisbon Treaty aimed to do away with. Indeed, even if the ordinary legislative procedure is heavily regulated by the EU Treaties and should channel most of the EU’s law-making, informal EU law-making is on the rise. As recently as July 2016, this led the European Ombudsman to call for more transparency of informal negotiations between the European Commission, European Parliament and the Council of the EU, also known as “trilogues” meetings.

It is no exaggeration to say that such “trilogues” are the black box of EU law-making. Under their current operation, it is possible to observe what comes in—legislative proposals are published by the Commission and initial reports by both Council and Parliament are also published—and what comes out of it—in the form of legislation eventually published in the Official Journal of the European Union. But, even after carrying out significant research efforts, it is impossible to crack what happens within the black box and to trace the origin and reasons behind important amendments to proposed legislation, as well as the way in which the final text is drafted.

This creates potential legal uncertainty in terms of the likely interpretation of the texts, which sometimes deviate from previous case law of the CJEU in unexplained ways. It also makes for difficult political assessments of the balance of interests that went into EU law-making and the weight that competing EU, national and group interests carried in shaping the new or revised rules. It can also significantly diminish the technical quality of the final rules, particularly where the trilogues are structured in sequence or address issues in a piece meal fashion, which prevents a final check for internal consistency and eventually leads to difficult systematic interpretation issues.

The case study of the reform of the EU public procurement rules in the period 2011-2014 clearly evidences these issues. The results of our two year research project, now published as Reformation or Deformation of the EU Public Procurement Rules, show both that the entirety of the legislative process was influenced by the CJEU case law, and that some of the most remarkable modifications of the pre-existing EU public procurement rules came about in an unexplained way at trilogue stage. As Dr Grith Skovgaard Ølykke and I stress in our conclusions,

The informal part of the procedure taking place between the 2011 Proposal and the first reading and adoption of the 2014 Directive prevented a repetition of the lengthy process of adopting the 2004 Directive (four years and a full-fledged ordinary legislative procedure, several amended proposals, conciliation and all). However, the early retreat to the trilogue and, hence, informality, significantly reduced transparency compared to that available in the legislative procedure leading to the adoption of the 2004 Directive, where e.g. the amended proposals contain the Commission’s argumentation for accepting proposed amendments or not.

… this still does not clarify the role and influence of the Commission in the post-Lisbon trilogue … Indeed, as stressed by the [European] Parliament itself, ‘given the Commission’s important and active role during Council working party (and even COREPER) discussions, its status as “honest broker” during trilogue negotiations is sometimes questioned in practice’.

A close analysis of the results of our research project helps gain a better understanding of the influence of the CJEU case law in EU law-making, both shaping it and as a benchmark from which policy-makers sometimes try very hard to deviate. However, the results of the research project also stress the limitations of an analysis of the travaux preparatoires and the negotiations throughout the legislative process when important changes and their reasons cannot be observed because they took place in the trilogue black box.

These insights will be interesting in guiding legal interpretive efforts, both in the area of EU public procurement law and more broadly. They will also be high quality and detailed evidence of the need to reform the way trilogues operate, both from a perspective of ensuring high standards of governance through accountability and transparency as stressed by the European Ombudsman, as well as from the perspective of preserving the value of interpretive aids in the context of an ever increasingly complex acquis communautaire.

Interesting AG Sharpston's Opinion on Lithuanian rules on subcontracting (C-298/15) -- warning on the use & transposition of 63(2) Dir 2014/24 & 79(3) Dir 2014/25?

In her Opinion in Borta, C-298/15, EU:C:2016:921, AG Sharpston assessed, amongst other things, the compatibility with EU law of a prohibition to subcontract part of a public works contract not covered by the relevant EU public procurement directive (in the case, Dir 2004/17). Her assessment thus relies on fundamental rules and general principles of the TFEU (in particular the free movement principles in Articles 49 and 56 TFEU).  

The dispute concerned a Lithuanian tender for the construction of a quay at the port of Klaipėda that ended up in litigation, not least due to a relevant change of participation requirements after the tender had been launched. In my view, the interesting point is that the Supreme Court of Lithuania raised of its own motion the question whether EU public procurement law precludes a provision of Lithuanian law that prohibits subcontracting ‘the main work’ in the context of public works contracts.

This concerns Art 24(5) of the Lithuanian Law on public procurement, according to which the procurement documents require the candidate or tenderer to specify in its tender any proposed subcontractors and may require the candidate or tenderer to specify the share of the contract that it is intended to subcontract to those subcontractors. However, where subcontractors are invited to carry out a works contract, the main work, as specified by the contracting authority, must be performed by the supplier.

Procedural aspects

The admissibility of this referral of its own motion by the Supreme Court of Lithuania could be considered problematic because Art 24(5) of the Law on public procurement was not clearly applicable to the dispute (as stressed in the AGO, C-298/15, para 40). However, AG Sharpston considers that the ECJ has jurisdiction to address the question because 

According to settled case-law, the Court cannot give a ruling on a question referred by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of EU law sought by the national court bears no relation to the actual nature of the case or to the subject matter of the main action. That is not however the case here. Paragraph 4.3 of the tender specifications, which lies at the centre of the dispute in the main proceedings, contains an express reference to Article 24(5) of the Law on public procurement. Against that background, it does not appear that [restriction on subcontracting in Article 24(5) of the Law on public procurement] manifestly bears no relation to the actual nature or the subject matter of the action and that question is therefore admissible (AGO, C-298/15, para 41, references omitted and emphasis added).

From a procedural perspective, this is interesting in itself and shows the wide scope for the referral of questions for a preliminary ruling by the ECJ by the highest courts of the Member States even where the clarification of those questions is not core, central or essential to the main dispute. In a different context, this is of relevance for the Brexit litigation before the UK Supreme Court (for discussion see here and here). More generally, the contours of the preliminary reference mechanism seem clearly wide and facilitative of inter-judicial dialogue, as supported by the recently revised Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings.

Substantive aspects

Moving on to the assessment of the compatibility with EU law of the prohibition to subcontract the main work under Art 24(5) of the Lithuanian Law on public procurement, there is an interesting preliminary point to note:

The Lithuanian Government submitted at the hearing that Article 24(5) of the Law on public procurement transposed the new rule on subcontracting in Article 79(3) of Directive 2014/25/EU before the expiry of the period prescribed for transposing that directive and that, consequently, the Court should examine the present reference from the perspective of that directive only ... The Commission argued that, on the contrary, Directive 2014/25 could not be taken into account. First, Article 24(5) of the Law on public procurement was passed before that directive was adopted. Second, Lithuania had omitted to notify the measures transposing Directive 2014/25 into Lithuanian law to the Commission (AGO, C-298/15, para 25, references omitted).

AG Sharpston is clear in excluding this analytical approach (which may have resulted in a different outcome of the case) on the basis that

As the Court has held recently in relation to Directive 2014/24, to apply that directive before the expiry of the period prescribed for its transposition would prevent not only the Member States but also contracting authorities and economic operators from benefiting from a sufficient period in which to adapt to the new provisions it introduced. ... to do so would also be inconsistent with the principle of legal certainty. The same applies by analogy to Directive 2014/25 (AGO, C-298/15, para 27, references omitted).

Thus, the analysis of the Lithuanian rule had to be carried out in relation with the EU public procurement acquis at the time of launching the tender: ie, Dir 2004/17. However, given that the value of the contract remained below its quantitative thresholds, and in view of the fact that it had cross-border interest (para 37), the rule had to be

examined against the background of the general principles of transparency and equal treatment arising from Articles 49 and 56 TFEU, which must be respected when awarding public contracts. Given that Articles 49 and 56 TFEU apply ... the [contracting authority] is required to respect the prohibition on discrimination on the grounds of nationality and the obligation as to transparency which those articles lay down (AGO, C-298/15, para 38, references omitted).

In carrying out that assessment, AG Sharpston reverted to the general functional approach to the EU regulation of below threshold public procurement:

Articles 49 and 56 TFEU preclude any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by nationals of the European Union of the freedom of establishment and the freedom to provide services guaranteed by those provisions.
As regards public contracts and the freedom of establishment and the freedom to provide services, the European Union is concerned to ensure the widest possible participation by tenderers in a call for tenders, even where directives on public procurement are not applicable. That is in the interest of the contracting authority itself, which will thus have greater choice as to the most advantageous tender which is most suitable for its needs. One of the principal functions of the principle of the equal treatment of tenderers and the corollary obligation of transparency is thus to ensure the free movement of services and the opening-up of undistorted competition in all the Member States (AGO, C-298/15, paras 43-44, references omitted).

After clarifying that the prohibition to subcontract the main work under Art 24(5) of the Lithuanian Law on public procurement 'restricts the freedom to provide services and the freedom of establishment' (para 46), she also stressed that 'such a restriction may be justified in so far as it pursues a legitimate objective in the public interest, and to the extent that it complies with the principle of proportionality in that it is suitable for securing the attainment of that objective and does not go beyond what is necessary in order to attain it' (para 47).

In that connection, it is interesting to note that the AG stresses that one of the elements to be taken into account is that 'the contracting authority is entitled to prohibit the use of subcontractors whose capacities could not be verified during the examination of tenders and selection of the contractor for the performance of essential parts of the contract' (para 49, with reference to Siemens and ARGE Telekom, C‑314/01, EU:C:2004:159, paragraph 45, and Wrocław - Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 34--and see here). 

Applying this test, AG Sharpston established that

First, that restriction applies even where the contracting authority is in fact in a position to verify the technical and economic capacity of subcontractors during the contract award procedure. An alternative to that restriction would (for example) have been to require the main contractor to identify subcontractors when submitting his tender and to demonstrate both that he will actually have available to him the resources of those subcontractors necessary for the performance of the contract and that those subcontractors are suitable for carrying out the tasks he intends to entrust to them.
Second, Article 24(5) is also both too rigid and too vague to satisfy the proportionality test. Although contracting authorities appear to enjoy flexibility when defining, for each contract, what ‘the main work’ is, the restriction on subcontracting resulting from that provision is defined in particularly broad terms. It applies regardless of the subject matter of the public works contract and is binding upon contracting authorities when they conclude any type of public works contract, even when they may consider that there is no obvious reason for imposing such a restriction at all.
... the restriction on subcontracting in Article 24(5) of the Law on public procurement differs in that regard from Article 79(3) of Directive 2014/25. That provision merely enables a contracting authority, in particular, to require that certain critical tasks be performed directly by the tenderer itself. Contracting authorities may thus assess whether such a limitation is opportune, depending on the circumstances. It follows that, even if, as the Lithuanian Government submits, Article 24(5) of the Law on public procurement were to be regarded as transposing Article 79(3) of Directive 2014/25 into Lithuanian law, that transposition would be incorrect.
For those reasons ... in the context of a public contract not subject to Directive 2004/17 or Directive 2004/18, but which has a clear cross-border interest, the prohibition on discrimination on the grounds of nationality and the obligation of transparency which arise under Articles 49 and 56 TFEU preclude a national rule such as that contained in Article 24(5) of the Law on public procurement, under which the tenderer has itself to carry out the ‘main work’, as identified by the contracting authority, without it being possible to subcontract that part of the contract (AGO, C-298/15, paras 51-54, references omitted and emphasis added).

This is interesting because, even if Dir 2014/25 (and 2014/24) was not relevant to the case, it indicates the direction in which a proportionality assessment of the rule in Art 79(3) Dir 2014/25 and Art 63(2) Dir 2014/24--as transposed into domestic law and as applied by contracting authorities--is likely to be carried out in the future [with a view to minimise their scope, which I would favour, see A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 353-354].