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Emergence of trans-EU public law: procurement as case study

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These are the slides of my presentation at the UEA Law School on 23 November 2016. They synthesise my current thoughts about the analysis of public procurement as a case study from the perspective of the potential emergence of trans-EU public law.

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Emergence of trans-EU public law: procurement as case study

  1. 1. The emergence of trans-EU public law: public procurement as a case study Dr Albert Sanchez-Graells Senior Lecturer in Law UEA Law School Research Seminar Series 23 November 2016 1Emergence of trans-EU public law: procurement
  2. 2. Motivation / starting point • Directive 2014/24/EU on public procurement has created (cross-border) cooperation mechanisms • Article 37: centralised procurement • Article 38: occasional joint procurement • Article 39: cross-border centralised / joint procmnt • Rec (73) assumes completeness of solution together with Rome I (Reg 593/2008) [!] Emergence of trans-EU public law: procurement 2 23 November 2016
  3. 3. Scalability of the questions • Are there gaps between layers of … ? • National public law of EU Member States • EU public law (including CFREU) • International public law • If we observe cross-border cooperation in practice, can we also assume that the situation is legally covered? Is this extra/alegal? Emergence of trans-EU public law: procurement 3 23 November 2016
  4. 4. Research questions • What (public) law applies when the public administrations of EU Member States cooperate in cross-border activities? • What other issues of conflicts of laws / jurisdiction arise in these settings? • Can we observe the emergence of trans-EU public law? Is EU law driving that process? Emergence of trans-EU public law: procurement 4 23 November 2016
  5. 5. Public procurement case study • One of several I intend to carry out in the future (others include competition enforcement) • Useful due to the complexity of legal relationships that arise + relatively high level of substantive harmonisation at EU level • Clear ‘business case’; likely to see administrative practice and litigation emerging soon Emergence of trans-EU public law: procurement 5 23 November 2016
  6. 6. A legal utopia or a practical dystopia? Emergence of trans-EU public law: procurement 6 23 November 2016 CPB1 MSA CPB2 MSB CA1 MSA CA2 MSA CA3 MSB CA4 MSB Sup1 MSA Sup3 MSC Sup2 MSB (R3) FWA (R1) (R2) (R3) (R4) (R4) Member State A Member State BMS C
  7. 7. A spoke in the cross-border procurement wheels? Or the ‘EU trump’ for trans-EU public law? • Art 39(1)II Dir 2014/24 • Contracting authorities shall not use the means provided in this Article for the purpose of avoiding the application of mandatory public law provisions in conformity with Union law to which they are subject in their Member State. Emergence of trans-EU public law: procurement 7 23 November 2016
  8. 8. Tentative conclusion • Existing EU level rules facilitate (push for?) emergence of cross-border procurement but fail to completely define the applicable regime • Opportunity for the emergence of trans-EU public law (substantive? / conflict of laws?) • Legal uncertainty may play in different ways Emergence of trans-EU public law: procurement 8 23 November 2016
  9. 9. Initial (technical) publication • A Sanchez-Graells, “Collaborative Cross-Border Procurement in the EU: Future or Utopia?” (2016) 3(1) Upphandlingsrättslig Tidskrift (Procurement Law Journal) 11-37, available at http://www.urt.cc/?q=node/140. Emergence of trans-EU public law: procurement 9 23 November 2016
  10. 10. Thank you for your attention Be in touch a.sanchez-graells@bristol.ac.uk http://howtocrackanut.com @asanchezgraells Emergence of trans-EU public law: procurement 10 23 November 2016

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