The document discusses recent developments in EEA public procurement law, focusing on challenges posed by new policy priorities and the implications for internal market and state aid law. It highlights key topics such as the narrowing of the concept of procurement, the treatment of e-procurement, and the potential impacts of Brexit. Additionally, it raises questions regarding competition law, remedies, and liabilities in the context of evolving procurement practices.

1. Some recent developments
in EEA public procurement
law
Dr Albert Sanchez-Graells
EFTA Surveillance Authority Lunchtime Seminar
Brussels, 9 February 2018

2. Agenda
To reflect on some of the challenges that the recent evolution
of EEA procurement law may create for the enforcement of
internal market and State aid law more generally

3. Selected topics
Recent developments and initiatives
Narrowing down of the concept of procurement
Treatment of e-procurement as a SGEI
Remedies and expansion of potential liability
Brexit and regulatory challenges: an EEA perspective?

4. Recent developments
and initiatives
Commission’s October 2017 Package
• 6 ‘new’ policy priorities
• Professionalisation
• Large infrastructure
• Procurement of innovation

5. Large infrastructure
Helpdesk (€250mn)
Ex ante notification (€500mn)
Information exchange mechanism
How to treat the emerging soft law or
guidance? EEA relevance?

6. ‘New’ policy
priorities
"Making Public Procurement work in and for
Europe" COM(2017) 572 final
1. Wider uptake of strategic procurement
2. Professionalising public buyers
3. Improving access to procurement markets
4. Transparency, integrity and better data
5. Boosting digital transformation
6. Cooperation for joint procurement

7. An internal market take
Will this trigger challenges based on prohibition to
artificially narrow down competition?
Will this trigger challenges based on general
principles of EEA law (à la RegioPost?)

8. A competition law take
What are the implications of some of those
initiatives concerning the ‘concept of undertaking’?
What scrutiny put on CPBs? What scrutiny from
perspective of cross-subsidisation?
What about risks of cartellisation?

9. Narrowing down of the
concept of
procurementFalk Pharma (C-410/14, EU:C:2016:399)
NHO Service v Norway (ESA 154/17/COL)
Particular relevance in the context of
‘services to the person’, but not only
Tirkkonen (AGO in C-9/17, EU:C:2017:962)
A move towards ‘user-choice’ systems?

10. Internal market law implications
How would the emergence of ‘user-choice’ systems affect
scrutiny of public expenditure from an EEA law perspective?
What about potential interaction with Services Directive?
Given ‘transfer’ of procurement principles to area of
authorisations, are we likely to move full circle?

11. e-procurement as a
SGEI
Aanbestedingskalender (TenderNed)
(T-138/15, EU:T:2017:675)
“the Commission was entitled to state ... that
e-procurement was a service of general interest,
and not an inherent economic activity, which could
be commercially exploited so long as the State did
not offer that service itself”

12. Competition and State aid
implications
Towards terra nullius?
How is it possible to accumulate dual exclusion of
control under Art 107(1) TFEU and Art 106(2) TFEU?
How can competition neutrality be ensured or at
least fostered?
Interaction of EU policies?

13. Remedies and
expansion of potential
liabilityFosen-Linjen (E-16/16)
Sharp contrast with recent approach by
UKSC in Nuclear Decommissioning
Authority ([2017] UKSC 34)
Clarification soon? Rudigier (C-518/17)
What potential impact for ESA’s role?

14. Brexit and regulatory
challenges
Brexit-readiness notice of 18.01.2018
'Withdrawal of the United Kingdom and EU
rules in the field of public procurement’
External dimension potentially more
complicated than internal dimension
• WTO GPA issues in the air

15. Thank you for your
attention & stay in
toucha.sanchez-graells@bristol.ac.uk
@asanchezgraells