EU APPLICATIONS AND CASELAW
Activities directly exposed to competition
Article 34 of Directive 2014/25/EU provides for certain contracts to be deemed outside the scope of the Directive if the Member State or the contracting entities can demonstrate that the activity is directly exposed to competition on markets to which access is not restricted. Belgian authorities have made a notice of request in respect of the production and wholesale of electricity in Belgium. The notice is available here.
Change of Consortium Membership
Cases C-403/23 and C-404/23 were requests for a preliminary ruling following decisions by which an authority: (i) excluded a temporary group of undertakings from a public procurement procedure, and (ii) enforced the provisional security provided by the members of the group for their participation in that procedure.
Article 47(3) and 48(4) of Directive 2004/18/EC provided for a group of economic operators relying on the capacities and abilities of participants in the group or other entities.
The CJEU has confirmed that Article 47(3) and Article 48(4) of Directive 2004/18/EC, read in conjunction with the general principle of proportionality, prevents national legislation which excludes the possibility for original members of a temporary group of tendering undertakings to withdraw from that group where the period of validity of the tender they submitted elapses and the contracting authority seeks to extend the validity of the tenders submitted to it, provided that it is established: (1) that the remaining members of that group |meet the requirements laid down by the contracting authority, and (2) that their continued participation in the tendering procedure in question does not place other tenderers at a competitive disadvantage.
Further, principles of proportionality and of equal treatment, and the obligation of transparency prevent national legislation which provides for the automatic forfeiture of the provisional security provided by a tenderer following its exclusion from a procedure for the award of a public service contract, even though the service in question has not been awarded to it.
Technical Specifications
In Case C-424/23, the contracting authority requires that rainwater drainage pipes be made of concrete and sewage drainage pipes be made of clay. An undertaking sought to have plastic tubes included in contracts.
Article 42 of Directive 2014/24/EU sets out rules on technical specifications to be provided in procurement documents. In this case the Advocate General's Opinion proposes that the Court interpret Article 42(2), (3) and (4) to mean that:
(i) the list of ways in which technical specifications must be formulated, laid down in Article 42(3), is mandatory and exhaustive,
(ii) the requirement that pipes for the drainage of rainwater and sewage must be made of concrete and clay, respectively, constitutes a 'reference' to specific types or specific forms of production. That reference:
- creates, by itself, the effect of favouring or eliminating certain undertakings or products, without it being necessary for a single manufacturer of the product to exist on the market,
- may be permitted if it is justified by the subject-matter of the contract and the contracting authority must provide that justification in the contract documents,
- may also be permitted if it was not possible to provide a sufficiently precise and intelligible description of the subject-matter of the contract, pursuant to Article 42(3),
- must be accompanied by the words 'or equivalent', unless the subject-matter of the contract is unavoidably dependent on the use of a component of the works which it is not objectively possible to replace with another equivalent component,
(iii) the infringement of Article 42(3) or (4) also entails the infringement of Article 42(2) and Article 18(1).
UK
Procurement Act 2023
The go live date for the Procurement Act is postponed by four months to 24 February 2025. This change is effected by the Procurement Act 2023 (Commencement No. 3 and Transitional and Saving Provisions) (Amendment) Regulations 2024. The new UK Government wishes also to replace the National Procurement Policy Statement made by the previous Government under section 13 of the Procurement Act 2023.
BREXIT
Trade and Cooperation Agreement
A fourth meeting of the Trade Specialised Committee on Public Procurement under the TCA has occurred. Minutes are not yet available. Further information is available here.
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.
