impact of the ecj’s jurisprudence in practice (era march 2017)
TRANSCRIPT
Impact of the ECJ’s Jurisprudence in Practice — Selected TopicsDr Albert Sanchez-Graells
ERA Annual Conference on European Public Procurement Law 2017Trier, 30-31 March 2017
30 March 2017
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Agenda• Cover developments in recent ECJ case law in 3
selected areas of practical relevance:• Subcontracting & Joint Bidding• Contract Amendments and Termination• Scope of the Concessions Directive
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Subcontracting & Joint Bidding (1)• Ostas celtnieks, C-234/14, EU:C:2016:6
• Requirement for undertakings seeking to rely on 3rd parties to have concluded a pre-award cooperation agreement including joint and several liability clause
• Decided under 2004 rules (Arts 47 & 48 Dir 2004/18) and, unsurprisingly declared incompatibility
• Difficulties interpreting Arts 19 & 63 Dir 2014/24
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Subcontracting & Joint Bidding (2)• PARTNER … C-324/14, EU:C:2016:214
• Assessment of degree of scrutiny of agreements with 3rd parties on which tenderer seeks to rely
• Decided under 2004 rules but consideration of 2014 rules (Arts 48(3) Dir 2004/18 & 63(1) Dir 2014/24)
• Reliance cannot be of a “purely formal manner” and it is possible that capacities are “not transferable”
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Subcontracting & Joint Bidding (3)• MT Højgaard and Züblin, C-396/14, EU:C:2016:347
• Equal treatment of a member of a consortium of 2 allowed to submit solo bid after partner’s bankruptcy
• Decided under 2004 rules, rectius general principles• No breach if solo bidder met all requirements and its
continuation does not place others at disadvantage• Lack of in-depth competition analysis • Ref to debate with Thomas (2015) and Ritter (2017)
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Subcontracting & Joint Bidding (4)• Wrocław … C-406/14, EU:C:2016:562
• Assessment of absolute limitations on value (%) of subcontracting accepted in a given tender
• Decided under 2004 rules (ie Art 25 Dir 2004/18) • Clear incompatibility of a 75% maximum
subcontracting requirement• Affects interpretation of Art 71 Dir 2014/24
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Subcontracting & Joint Bidding (5)• Pending case Borta, C-298/15• AG Sharpston’s Opinion [EU:C:2016:921]
• Requirement for contractor to carry out (ie not subcontract) ‘main work’ as specified by the contracting authority
• Assessed under Dir 2004/17, but also 2014/25 – but analysed under Arts 49 & 56 TFEU (below threshold)
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Subcontracting & Joint Bidding (6)• Hörmann Reisen, C-292/15, EU:C:2016:817
• Raised issue of compatibility of prohibition to subcontract more than 30% of services with applicable public procurement rules
• Decided under 2004 rules, incl. Reg 1370/2007• Applicability Reg 1370/2007 clarified as lex specialis• Difficulties re Arts 63(2) & 71 Dir 2014/24
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Contract Amendments and Termination• Finn Frogne, C-549/14, EU:C:2016:634
• Can a termination settlement infringe rules on illegal modification (reduction) of public contracts (mainly by proceeding to a sale rather than a lease)?
• Decided under 2004 rules, rectius general principles• Creates the idol of general modification clauses [37]• Difficult to interpret Arts 72(1)(a) (& 73) Dir 2014/24
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Scope of the Concessions Directive• Promoimpresa, C-458/14, EU:C:2016:558
• Mutual exclusivity with Services Directive (2006/123)• Politanò, C-225/15, EU:C:2016:645
• 2004 rules did not apply to betting and gambling ‘concessions’ (rectius, licences or authorisations)
• Hörmann Reisen, C-292/15, EU:C:2016:817• Inapplicable to transport sector; Reg 1370/2007
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Further reading
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Thank you for your attention
Be in [email protected] @asanchezgraells
ERA Annual Public Procurement Conference 2017
30 March 2017