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.

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. 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. 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?
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23 November 2016

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?
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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
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23 November 2016

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. 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.
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23 November 2016

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
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23 November 2016

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.
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10. Thank you for your attention
Be in touch
a.sanchez-graells@bristol.ac.uk
http://howtocrackanut.com
@asanchezgraells
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23 November 2016