1. Sub-dimensional PUBLIC PROCUREMENT: between EU principles and gold plating Dacian C. Dragos Center for Good Governance Studies Babes Bolyai University, Cluj Napoca, Romania

2. Contracts outside the EU directives: what relevance? 80% of the procurement market – contracts not covered by the directives 10% of procedures are covered by the EU Directives 90% of procedures recorded nationally – below the EU thresholds Values: 20% of the public expenditures covered by the EU Directives

3. Thresholds THE WTO Government Procurement Agreement (SDR) THE WTO Government Procurement Agreement (SDR) 2014 Directives (EUR) 2014 Directives (EUR) (a) EUR 5 186 000 for public works contracts; (a) EUR 5 186 000 for public works contracts; (b) EUR 134 000 public supply and service, central authorities (b) EUR 134 000 public supply and service, central authorities (c) EUR 207 000 public supply and service contracts, sub-central authorities (c) EUR 207 000 public supply and service contracts, sub-central authorities (d) EUR 750 000 public service contracts Annex XIV (d) EUR 750 000 public service contracts Annex XIV Up until 2004 – full application of the Directive - lowering the thresholds Up until 2004 – full application of the Directive - lowering the thresholds 2014 onward – increasing the thresholds 2014 onward – increasing the thresholds

4. Reasoning Sub-dimensional - not enough cross border interest Sub-dimensional - not enough cross border interest Contracts above thresholds – majority of PP in the MS Contracts above thresholds – majority of PP in the MS GPA GPA Critique: Critique: The size of PP The size of PP MS become the main actors in the integration of public markets, not the EU MS become the main actors in the integration of public markets, not the EU

5. Case law of the CJUE Unitron Scandinavia Unitron Scandinavia Telaustria Telaustria Commission v. France Commission v. France Germany v. Commission Germany v. Commission Commission v. Italy Commission v. Italy Coname Coname Bent Mousten Vestergaard Bent Mousten Vestergaard Parking Brixen Parking Brixen

6. Case law (cont) Succhi di frutta Succhi di frutta Evropaïki Dynamiki Evropaïki Dynamiki Strong Segurança Strong Segurança Medipac-Kazantzidis Medipac-Kazantzidis SECAP SECAP Commission v. Ireland Commission v. Ireland Belgacom Belgacom Comune di Ancona Comune di Ancona

7. Soft law: the 2006 Communication Synthesis of the jurisprudence Synthesis of the jurisprudence Cross border interest test: Cross border interest test: subject matter of the contract, subject matter of the contract, its estimated value, its estimated value, the size and structure of the particular market, the size and structure of the particular market, commercial practices commercial practices the geographic location of the place of performance the geographic location of the place of performance

8. EU principles Recital 1: Recital 1: free movement of goods, free movement of goods, freedom of establishment freedom of establishment freedom to provide services freedom to provide services equal treatment, equal treatment, non-discrimination, non-discrimination, mutual recognition, mutual recognition, proportionality proportionality transparency transparency

9. Equal treatment the obligation of transparency the principle of freedom to provide services the principle of free competition No new obligations (Germany v. Commission)

10. Non-discrimination Non-discriminatory description of the subject-matter of the contract (Bent Mousten Vestergaard) Non-discriminatory description of the subject-matter of the contract (Bent Mousten Vestergaard) Mutual recognition Mutual recognition Non discrimination = equal treatment? Non discrimination = equal treatment? EU institutions EU institutions National courts National courts

11. Proportionality 2006 Communication 2006 Communication Time limits Time limitsTransparency Rules known in advance Rules known in advance Applied equally Applied equally Sufficient time Sufficient time Individual quotations? No Individual quotations? No Coname: some degree of transparency, unless very modest economic interest Coname: some degree of transparency, unless very modest economic interest

12. Member States experiences National jurisdictions - playground for the principles of EU law. National jurisdictions - playground for the principles of EU law. Options: Options: extension of the rules of the Directives to sub-dimensional procurement (either fully or partially), extension of the rules of the Directives to sub-dimensional procurement (either fully or partially), the application of general public or private law rules the application of general public or private law rules

13. OECD 2010 OECD 2010 Majority of MS – sub-dimensional procurement in same legislative act Majority of MS – sub-dimensional procurement in same legislative act Sub-dimensional PP – transparency, competitive, fair procedures Sub-dimensional PP – transparency, competitive, fair procedures

14. Selected MS data 2012 Gold plating Gold plating new EU entrants (2004 and 2007) (fear of corruption) new EU entrants (2004 and 2007) (fear of corruption) France, Italy and Spain France, Italy and Spain Germany, Denmark, UK – separate regimes Germany, Denmark, UK – separate regimes

15. National procedures for sub- dimensional procurement - simplified. National procedures for sub- dimensional procurement - simplified. shorter time limits for submission of applications or tenders (further shortened in case of electronic submissions) shorter time limits for submission of applications or tenders (further shortened in case of electronic submissions) less demanding rules for publication and selection of tenderers. less demanding rules for publication and selection of tenderers.

16. Direct procurement very modest economic interest very modest economic interest national thresholds – between EUR 5000 and EUR 50 000 national thresholds – between EUR 5000 and EUR 50 000 Spain - 50 000 works 18 000 services and supplies, France and Poland EUR 15 000, Italy EUR 40 000, Romania EUR 100 000 works and EUR 30 000 services and supplies, Denmark EUR 67 000. Spain - 50 000 works 18 000 services and supplies, France and Poland EUR 15 000, Italy EUR 40 000, Romania EUR 100 000 works and EUR 30 000 services and supplies, Denmark EUR 67 000. UK and Germany -no national threshold, but devolved local authorities may establish similar thresholds UK and Germany -no national threshold, but devolved local authorities may establish similar thresholds

17. Remedies OECD study – majority - same remedies OECD study – majority - same remedies Denmark, UK, Germany, Spain - different remedies regimes Denmark, UK, Germany, Spain - different remedies regimes Direct procurement - national rules of redress Direct procurement - national rules of redress

18. Final remarks European Commission: direct cross-border procurement has not increased as much as was anticipated European Commission: direct cross-border procurement has not increased as much as was anticipated Even more true for sub- dimensional procurement Even more true for sub- dimensional procurement 2014 Directive: joint awarding of public contracts by contracting authorities from different Member States (Recital 73) 2014 Directive: joint awarding of public contracts by contracting authorities from different Member States (Recital 73)

19. Sub dimensional regime Case law CJUE Case law CJUE National practices – mainly gold plating. National practices – mainly gold plating. Cross border interest test - rarely performed, Cross border interest test - rarely performed, Remedies are either extended as a result of gold plating, or provided by national law. Remedies are either extended as a result of gold plating, or provided by national law. The scope of sub-dimensional procurement bound to widen The scope of sub-dimensional procurement bound to widen