Model Rules on EU Administrative Procedures Book IV – Contracts Presentation for the ReNEUAL Conference 2014 EU Administrative Procedures – European Ombudsman Conference Brussels, May 19 th -20 th Prof. Ulrich Stelkens Deutsche Universität für Verwaltungswissenschaften Speyer

Administrative procedure leading to the conclusion of an EU contract (administrative procedure and public procurement rules) Conclusion of the EU contract (rules governing the prerequisites for the validity of a contract – and the right to adduce invalidity) Execution and end of the EU contract Three phases of the life of an EU contract 2 (law of ‘obligations’ – but also: administrative procedures with regard to the decision of a public authority to exercise contractual rights, to terminate the contract, to enact an unilateral act permitting the enforcement of contractual rights etc.)

 Complexity and of contract law applicable do conclusion and execution of contracts due to the possibility of a choice between EU law and (member) State law as law of the contract  Applicability of public procurement law to the conclusion of EU contracts on the basis of EU Financial regulation, but focusing on financial issues   Necessity of innovations in order to guarantee procedural rights  Draft rules drafted on the basis of a selection in existing EU and/or Member States law, and where needed novel proposals (will be specified in explanations) 3 Innovative codification

Two procedures for the conclusion in Book IV : Competitive award procedure – rebuilt on public procurement rules (Art. IV-9 ss.)  Applicable:  if the contracting EU Authority is not legally obliged to conclude an EU contract with every person satisfying the criteria for the award;  if the contracting EU Authority is not legally bound by a framework contract, decision or otherwise to conclude the contract at hand with a specific person.  Examples:  public procurement, ‘privatisations’, staff recruitment, financial aids 4 Rules on the conclusion of EU contracts

Two procedures for the conclusion in Book IV : ‘standard’ procedure/ general rules on procedure (Art. IV-7 ss.)  Applicable:  general rules on procedure for all cases not comparable to ‘procurement cases’  Examples outside the scope of competitive award procedure:  transactions, settlements, modification of existing EU contracts etc.  Basic idea:  Applicability mutatis mutandis of rules of Book III concerning decisions of EU Authorities  Residual applicability in competitive award procedures 5 Rules on conclusion of EU contracts

Besides the two procedures for the conclusion of specific contracts: Rules on drafting general terms of contracts (Art. IV-6)  Applicable:  Drafting of general terms of contracts (i.e. contractual terms which have not been individually negotiated)  Basic idea:  General terms of contract may replace soft law  Applicability mutatis mutandis of rules of Book II on administrative rulemaking  May assure a homogenous use of general terms of contracts 6 Procedure for drafting general terms of contract

 Typical questions: e.g. termination, performance, changes of circumstances  Book IV has a clear focus on decision making within the execution phase (procedural aspects after conclusion). It is not intended to build up an own “law of obligation” for EU contracts, whereas not always easy to distinguish  Nevertheless: Decisive for this phase of the “life of a contract” is the type of contract – which “law of obligation” does apply?  Necessary distinction between contracts governed by EU law and contracts governed by Member State law as the results are usually different 7 Rules on execution of EU contracts

 Chapter 1 (Art. IV-3 ff.) defines the different types of contracts  Book IV is based on this division, but sticks to a clear distinction between application of EU law and Member State law: no ‘regime-mix’ concerning the execution of EU contracts 8 EU Contracts solely governed by EU Law (esp. sector specific legislation) governed by Member State Law (Art. 335 TFEU) Rules on execution of EU contracts

 Examples for EU contracts solely governed by EU law:  Usually contracts serving as a tool to implement EU policies (bearing only few similarities to contracts concluded between private parties),  inter alia: grant agreements, transactions and settlement agreements (but also staff contracts in the sense of the EU Staff Regulations)  Examples for EU contracts governed by the law of a Member State:  Usually contracts which could also be concluded between private parties  inter alia: contracts concerning the purchase and sale of goods or real estate, rental and lease contracts, or contracts for the supply of services 9 Rules on execution of EU contracts

 Basic ideas:  Procedures which lead to the EU Authority’s exercise of contractual rights or its claim of invalidity shall be subject to the principles of good administration, in particular the rules of Book III (Art. IV-21)  Proactive drafting of contracts instead of relying on (unclear) case law of the ECJ and Member State courts.  Example: If the contract is governed by national law, the parties shall adapt the contract to EU law specifications, (esp. Rights of the Charter, Right to Good Administration) by standard terms or contractual clauses 10 Rules on execution of EU contracts

Book IV - Structure 11 Chapter 1:General provisions (e.g. Scope, Definitions, Applicable Law) Chapter 2:Procedures for the conclusion of contracts Section 1: Preparation of general terms of contracts Section 2: General rules on procedure Section 3: Competitive award procedure Chapter 3:Execution and validity of EU contracts Section 1: General provisions Section 2: EU contracts governed by EU law Section 3: EU contracts governed by Member State Law Chapter 4:Subcontracts