The Commission’s procurement mechanism for large infrastructure projects, soft law with a new twist, or catch 22? — How to Crack a Nut

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  • Non -binding specific legal ratings?
  • Precision and legal effects
  • The Triumph of the Man Who Acts (Audiobook)
  • How confidential is confidential?
  • The devil is in the footnotes or catch 22?
    • Non -binding specific legal ratings?
    • Precision and legal effects
    • How confidential is confidential?
    • The devil is in the footnotes or catch 22?

    At 3. October 2017, the European Commission launched a strategy to edit awareness in and for Europe. As the accompanying press release shows, the strategy has four main strands: (i) The definition of priority areas for improvements at the level of the Member State; (II) Voluntary ex-Anted rating of large infrastructure projects; (III) A recommendation for the professionalization of public buyers; and (IV) a consultation to stimulate innovations through public procurement.

    The first initiative consists of a policy that causes the Member States to concentrate the efforts on six priorities: A stronger admission of innovative, green and social criterion in the awarding of public contracts; Professionalization of public buyers; improvement of access through SMEs to procurement markets in the EU and in the EU and in the EU and in the EU and the efforts of public buyers improve on the procurement markets in the EU and the EU. from EU companies in third countries; Increasing transparency, integrity and quality of the procurement data; Digitization of procurement processes; and more cooperation between public buyers throughout the EU. . None of the priority areas affect problems that I would consider for the immediate practical relevance, especially with regard to the legal clarification of the public procurement package 2014 (see here), but reflect that the agents of the procurement guideline at the top of the guideline production of the production Procurement guidelines reflect at least in the past 10 years and where all efforts (and profits) are at best incremental. I find the advance for the further strategic use of procurement particularly interesting as well as the advance for more procurement cooperation, including central and cross -border procurement. These are problems that will soon earn further discussions.

    The third initiative for professionalization will also be the subject of a future contribution, while I will submit my views to the use of procurement to promote innovations in the context of the official consultation. Here I am particularly interested in the second initiative that Voluntary ex-Anted rating of large infrastructure projects (Already announced in the 2015 strategy to improve the internal market), which is described in more detail in the associated communication The investment helps with a voluntary ex-Antal assessment of the procurement aspects for large infrastructure projects.

    The initiative is structured around three main elements: (i) A Helpdesk in which the Commission can provide clarification within one month on questions of the interpretation of the EU procurement rules or its application to a specific case and which (as soon as anonymized) are published) Published for more general use; (II) A notification system that wanted to apply for broader procurement plans, in which the Member States [to] express their views as to whether the procurement plan corresponds to the EU procurement rules without prejudice against future legal interpretation or evaluation ; and (iii) an information exchange mechanism that is supposed to be a knowledge management instrument for the use of national authorities and contracting authorities/meads that are ultimately aimed at creating reference classes of similar projects, exchange in various aspects.

    There are considerable practical problems, especially with regard to the third strand and in particular with regard to the usefulness of a collection of earlier projects, in which there are no signs of this!not Database includes a mechanical translation system . This can significantly reduce the practical relevance of this part of the initiative, in particular in view of the considerable difficulties in the exact machine translation of Technical EC specifications or complex contractual clauses.

    However, it is even more important that this mechanism and in particular the notification system have questions about the legal nature of the evaluations and clarifications of the Commission as well as some practical questions regarding the resources of the help desk, based on the mechanism. I will concentrate exclusively on the first edition, since the challenge of ensuring sufficient human capital to ask all questions and notifications from the Member States ultimately depends on the availability of the budget.

    In simple words, the Commission describes the mechanism as follows:

    Complex projects can go wrong from the start if the project Manager Do not completely go to the complex rules that apply to the large -scale procurement. The commission will set up a help desk that can answer specific questions in an early stage to projects with an estimated value of over 250 million euros. Of high importance for projects for the Member State in question or with an overall estimated value of over 500 million. € If the relevant authorities can ask the Commission to check the complete procurement plan for compatibility with the EU creation legislation, whereby the uncertainties and the risk of delays and delays are significantly reduced legal challenges. The mechanism is voluntary, The Commission's advice is not binding, And information is treated subject to strict confidentiality requirements (Added emphasis).

    This will also be evaluated at the beginning of the fully description of the mechanisms. , But that Views that are expressed by the commission services in their assessment, and are without prejudice to interpret the relevant rules by the Court of Justice of the European Union. (Com (2017) 573, 4, left out some footnotes, with the exception of the footnote 10).

    Already at this level of the design of the mechanism for the ex-Antal evaluation of procurement, EU lawyers are likely to pull their eyebrows up and wonder how it is possible or not with EU law can be regarded as non-binding. In my opinion and in particular, if EU funds are involved in a project that is granted the risk, this will certainly be negotiated on the basis of the principle of legitimate expectations (or administrative esta). In this sense, it is reminded that the Court of Justice has repeated in its latest wording,

    The right to rely on the principle of protection of legitimate expectations. Information that is precise, unconditional and consistent, in whatever form such an assurance is (judgment of 13. September 2017, Pappalardo and other V -Commission, EU: C: 2017: 672, ABS. 39; See also references, quoted in it).

    I would have thought that a contracting authority (and a profit knife) that had received a document from the Commission that states that the project has complied with the EU Act. Conversely, if the Commission made a negative statement and the contracting authority decided to carry out. In addition, it is difficult to see. All in all, this seems to be another case of soft law that is bound to harden, But this time with a turn, since this would be the result of a specific procedure that was created by the Commission in this sense, as a by-product or as an unintentional consequence of regular administrative procedures that are subject to EU administrative law.

    The Commission could of course argue that they will initiate its views in such terms in order to avoid a detailed level that is specific enough to create legitimate expectations (which would empty this mechanism), and that they would empty effectiveness or appeal) Researching the public would disclose these evaluations to avoid these effects (which I consider not really possible in view of the obligation to grant the documents discussed here here in accordance with Regulation 1049/2001). However, that would not be very convincing. Each of these problems requires a further assessment because none of them seems to keep a lot of water.

    The Commission's procurement mechanism for large infrastructure projects, soft law with a new twist, or catch 22? — How to Crack a Nut commission

    When trying to make the mechanism attractive for the Member States, which he supports in communication, the Commission indicates that the Helpdesk with more special and potentially complicated topics such as Z

    • The applicable legal framework for the project: classic procurement or supply guidelines; Concession directive, etc.
    • Conditions for exclusions from the guidelines;
    • Procurement procedures to be used and their specific features;
    • Selection and price criteria;
    • Inclusion of green, social and innovative considerations;
    • How to implement a joint procurement in accordance with Article 39 of Directive 2014/200/EU.

    With regard to the type of question, one within a month from the time when the Commission contains all the information that it takes into account for answering for answering. This answer will later be anonymized and published on the website of the ex-one mechanism. At this point and probably in consciousness (and in concern) of the possible legal effects of such answers to specific and potentially rather complex and difficult questions, communication contains a transverse referential footnote that again indicates that he viewed himself from the commission services In your evaluation are non -legally binding About those who use the mechanism or the Commission and are without prejudice to interpret the relevant rules by the Court of Justice of the European Union. .

    The Triumph of the Man Who Acts (Audiobook)

    Similarly, about the notification of a procurement plan by the competent authority or in relation to specific contract changes and within a period of three months [t] commission services are then presented in the The commission services express their views whether the procurement plan corresponds to the EU procurement rules, Without prejudices for future legal interpretation or evaluation. Interestingly, communication at this time contains another intersection to the now famous footnote 10, which indicates this non -legally binding About those who use the mechanism or the Commission and are without prejudice to interpret the relevant rules by the Court of Justice of the European Union. .

    At this point one is asked whether the contracting authorities will have an incentive to raise problems with the Commission because they know that they have to wait a month (help desk) or three months (full notifications via procurement plans) and this, and they have to wait What they receive is a view of the Commission that the Commission itself is not willing to be at risk of being confronted with specific recommendations or warnings to carry out the procurement. There seems to be an opposing incentive for contracting authorities to ignore these mechanisms, and the delay that they imply overall, except if they cannot afford independent legal advice (which seems to be rare, where a project budget of 250 million. € or 500 million. € and May May you see the Commission as the only available source for available (free) specialist knowledge.

    How confidential is confidential?

    The second important topic concerns potential difficulties in preserving the confidentiality of the documents exchanged with the Commission. In fact, the Commission itself is reminiscent of (in a different footnote!, N 23) Regulation (EC) No. 1049/2001 of the European Parliament and the Council of 30. May 2001 regarding public access to the European Parliament, the Council and the Commission documents applies to all documents created or received by the Commission and in its possession .

    25 Most Frightening SCP (SCP Animation)

    This means that even if the commission and the contracting authority have a view whether information is confidential or not, the fact that the Commission has the documentation is triggered by a risk of disclosure (or at least from disclosure obligations) according to the EU. This can be a challenge for contracting authorities in Member States that impose a lower level of transparency. This also means that if the Commission and the contracting authority have no view of the confidentiality of some information, there is additional legal potential for legal disputes. Even if the Commission was ready to postpone the Member States and to assure them that the second type of problem does not occur, the first is inevitable.

    Even if there are good reasons to assume that Reg 1049/2001 (Art 4) contains sufficient exceptions from the disclosure of information of the type that a contracting authority can worry, the simple fact that the Commission had the need has specific references to insert them. Rules to any document that could contain confidential or sensitive information.

    The devil is in the footnotes or catch 22?

    All in all, they seem to be influenced by the Commission for the voluntary ex-Antal evaluation of large infrastructure projects, including the help desk and information exchange mechanism, by two main problems: firstly, an inevitable tension between on the one hand to make detailed reviews that the commission value the contract authorities, while (especially with regard to reviews. Second, a risk of public exposure to all or parts of a project that can have highly sensitive effects (in political and commercial terms).

    The Commission seems to have dependent on the existence of a large amount of (good) willingness of the contracting authorities and the hope that the mechanism is perceived and understood as soft and understood (including economic and political representatives with other agendas). As doctoral students and peer reviews know well, the devil is in the footnotes, where we all tend to hide these arguments that we know about. In my opinion, footnotes are 10 (no legal effects) and 23 (confidentiality warning) and the multiple cross -crowds of good indicators that this mechanism will be problematic. And this is simply because, even if it is clear that the contracting authorities always benefit from additional expertise and (good) free legal advice (especially, but not only if they deal with complex projects), the simple fact is that the Commission The Commission is unable to provide it. Firstly, structurally due to the legal framework in which it works what it works into question to participate in this type of advocacy and initiative. Second, due to important resource restrictions, which can soon become obvious when the mechanism is used.

    Overall, I think that this voluntary ex -Mechanism is the paradigm of a fishing 22 for the Commission. It is striking that this is one that the Commission created for itself (ignores the ONS of the long -term notification mechanism in connection with Article 101 (3) Tfeu). And what makes me personally is that I know that the Commission heard all of these arguments long before the publication of communication has been published, how the protocol of the meeting of the StakeHolder Expert Group on public procurement from 17. February 2016 (note the last two list marks of Para 2).

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