IRELAND
Dismissal of Procurement Challenge
The High Court dismissed a challenge by the CEO of Caraglass Limited against a decision of the Minister for Education to cancel a procurement process to supply mobile phone pouches. The CEO claimed the company had been in a strong position to win the tender.
Save in exceptional circumstances, a company cannot be represented in Court by a litigant in person. Exceptional circumstances were not established. The applicant's challenge was out of time: procurement challenges must be taken within 30 calendar days after the applicant has been notified of the decision, or knew or ought to have known of the infringement alleged in the application. The Court rejected the applicant's argument that time ran from the date on which he had conducted informal safety tests involving setting fire to his and competitors' products. It was clear in the invitation to tender that the respondent could cancel the tender at any time. In a second tendering process, the applicant and another company were successful. The facts did not establish a serious injustice to the applicant that the Court was impelled to investigate and remedy, nor was there any cogent evidence of a risk to public health.
EU
Review: Foreign Subsidies Regulation
The Foreign Subsidies Regulation requires companies to notify their tenders when the estimated value of the contract exceeds €250 million, and when the company has been granted at least €4 million in foreign financial contributions from a third country in the three years before the notification. It gives the Commission certain powers to investigate and order redressive measures. The Commission is required to review its practice of implementing and enforcing the Regulation by July 2026 and then every three years and so is now seeking feedback on implementation by 18 November 2025 from interested parties.
Circular Economy Act
The European Commission is consulting until 6 November 2025 on a Circular Economy Act to enhance competitiveness while promoting more sustainable production, circular economy business models and decarbonisation. It may include mechanisms to foster the single market for waste, secondary raw materials and their use in products, including setting criteria for the public procurement of circular goods, services and works to stimulate EU demand.
Review: International Procurement Regulation
Regulation (EU) 2022/1031 is intended to facilitate access of third-country economic operators, goods and services to EU markets, and vice versa. It requires the European Commission to report, by 30 August 2025 then every two years, on application of the Regulation. In its first report, the Commission finds that the tools necessary to facilitate the application of the Regulation are in place, but that it is premature to draw conclusions as to the extent to which the instrument has met the objective of opening markets in non-EU countries.
EU
Renewable Energy Obligation Scheme: Purchase of Certificates by a State-owned Company
The Polish Supreme Court made requests for preliminary rulings in several Joined Cases, one of which was C459/23. The case involved a Polish energy supply company which was majority state-owned (a "public undertaking" under the Utilities Directive). The public undertaking was obliged to purchase green certificates in the context of a renewable energy obligation scheme as provided for in the 2009 Renewable Energy Directive.
The public undertaking entered into a long-term agreement with a private company for monthly performance contracts to purchase green certificates. In the context of Court proceedings, questions arose as to validity of the contracts, it being argued that the public undertaking was subject to the Utilities Directive and that the contracts should have been awarded through a transparent and competitive process.
The procurement questions referred by the Polish Court concerned whether the purchase of green certificates constituted an activity pursued for the purpose of supplying electricity to fixed networks intended to provide a service to the public in the field of electricity production, transport or distribution, which would bring it within scope of the Utilities Directive; whether the overall agreement was a framework agreement (given that it was an agreement to conclude monthly transactions on specified price and quantity terms); whether for threshold purposes, the contracts fell to be assessed individually; and whether failure to advertise in the OJEU meant that the contracts were ineffective.
The CJEU replies were, broadly, that the activity was in scope of the Utilities Directive. The purchase, by a public electricity trading undertaking, of green certificates constituted an activity pursued for the purpose of supplying electricity to fixed networks intended to provide a service to the public in the field of electricity production, transport or distribution.
The CJEU found that the contracts could be considered framework agreements, if they met the conditions set out at paragraph 139 of the judgment. The national Court would be required to ascertain whether the contract defined the period during which the green certificate purchase contracts could be carried out. Further, mere indication of a price formula and an obligation to purchase all certificates, without specifying a specific quantity, would not be sufficient to find there was a framework agreement.
The CJEU also found that the contracting entity could not rely on the unit value of each of the monthly contracts for threshold purposes. It either had to award successive contracts in accordance with procurement procedures or award a framework agreement. The consequences of failing to publish contract notices was that the contracts could be declared ineffective.
Finally, the principle of the prohibition of abuse of rights did not prevent a contracting entity from seeking the annulment of a contract on the ground that that contract was concluded in breach of procurement rules, even though the real reason for the claim was a reduction in the profitability of the performance of that contract.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
