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Impact of the ECJ’s jurisprudence in practice (ERA March 2017)

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This is the presentation on recent case law of the ECJ I gave at ERA's Annual Conference on European Public Procurement Law 2017.

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Impact of the ECJ’s jurisprudence in practice (ERA March 2017)

  1. 1. Impact of the ECJ’s Jurisprudence in Practice — Selected Topics Dr Albert Sanchez-Graells ERA Annual Conference on European Public Procurement Law 2017 Trier, 30-31 March 2017 30 March 2017 1ERA Annual Public Procurement Conference 2017
  2. 2. Agenda • Cover developments in recent ECJ case law in 3 selected areas of practical relevance: • Subcontracting & Joint Bidding • Contract Amendments and Termination • Scope of the Concessions Directive ERA Annual Public Procurement Conference 2017 2 30 March 2017
  3. 3. Subcontracting & Joint Bidding (1) • Ostas celtnieks, C-234/14, EU:C:2016:6 • Requirement for undertakings seeking to rely on 3rd parties to have concluded a pre-award cooperation agreement including joint and several liability clause • Decided under 2004 rules (Arts 47 & 48 Dir 2004/18) and, unsurprisingly declared incompatibility • Difficulties interpreting Arts 19 & 63 Dir 2014/24 ERA Annual Public Procurement Conference 2017 3 30 March 2017
  4. 4. Subcontracting & Joint Bidding (2) • PARTNER … C-324/14, EU:C:2016:214 • Assessment of degree of scrutiny of agreements with 3rd parties on which tenderer seeks to rely • Decided under 2004 rules but consideration of 2014 rules (Arts 48(3) Dir 2004/18 & 63(1) Dir 2014/24) • Reliance cannot be of a “purely formal manner” and it is possible that capacities are “not transferable” ERA Annual Public Procurement Conference 2017 4 30 March 2017
  5. 5. Subcontracting & Joint Bidding (3) • MT Højgaard and Züblin, C-396/14, EU:C:2016:347 • Equal treatment of a member of a consortium of 2 allowed to submit solo bid after partner’s bankruptcy • Decided under 2004 rules, rectius general principles • No breach if solo bidder met all requirements and its continuation does not place others at disadvantage • Lack of in-depth competition analysis • Ref to debate with Thomas (2015) and Ritter (2017) ERA Annual Public Procurement Conference 2017 5 30 March 2017
  6. 6. Subcontracting & Joint Bidding (4) • Wrocław … C-406/14, EU:C:2016:562 • Assessment of absolute limitations on value (%) of subcontracting accepted in a given tender • Decided under 2004 rules (ie Art 25 Dir 2004/18) • Clear incompatibility of a 75% maximum subcontracting requirement • Affects interpretation of Art 71 Dir 2014/24 ERA Annual Public Procurement Conference 2017 6 30 March 2017
  7. 7. Subcontracting & Joint Bidding (5) • Pending case Borta, C-298/15 • AG Sharpston’s Opinion [EU:C:2016:921] • Requirement for contractor to carry out (ie not subcontract) ‘main work’ as specified by the contracting authority • Assessed under Dir 2004/17, but also 2014/25 – but analysed under Arts 49 & 56 TFEU (below threshold) ERA Annual Public Procurement Conference 2017 7 30 March 2017
  8. 8. Subcontracting & Joint Bidding (6) • Hörmann Reisen, C-292/15, EU:C:2016:817 • Raised issue of compatibility of prohibition to subcontract more than 30% of services with applicable public procurement rules • Decided under 2004 rules, incl. Reg 1370/2007 • Applicability Reg 1370/2007 clarified as lex specialis • Difficulties re Arts 63(2) & 71 Dir 2014/24 ERA Annual Public Procurement Conference 2017 8 30 March 2017
  9. 9. Contract Amendments and Termination • Finn Frogne, C-549/14, EU:C:2016:634 • Can a termination settlement infringe rules on illegal modification (reduction) of public contracts (mainly by proceeding to a sale rather than a lease)? • Decided under 2004 rules, rectius general principles • Creates the idol of general modification clauses [37] • Difficult to interpret Arts 72(1)(a) (& 73) Dir 2014/24 ERA Annual Public Procurement Conference 2017 9 30 March 2017
  10. 10. Scope of the Concessions Directive • Promoimpresa, C-458/14, EU:C:2016:558 • Mutual exclusivity with Services Directive (2006/123) • Politanò, C-225/15, EU:C:2016:645 • 2004 rules did not apply to betting and gambling ‘concessions’ (rectius, licences or authorisations) • Hörmann Reisen, C-292/15, EU:C:2016:817 • Inapplicable to transport sector; Reg 1370/2007 ERA Annual Public Procurement Conference 2017 10 30 March 2017
  11. 11. Further reading ERA Annual Public Procurement Conference 2017 11 30 March 2017
  12. 12. Thank you for your attention Be in touch a.sanchez-graells@bristol.ac.uk www.howtocrackanut.com @asanchezgraells ERA Annual Public Procurement Conference 2017 12 30 March 2017

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