Within the aftermath of the CJEU’s Judgments in Kolin (C-652/22, EU:C:2024:910) and Qingdao (C-266/22, EU:C:2025:178), there was a lot anticipation a few steerage doc being ready by the European Fee to deal with a number of the many, advanced, consequential points left open by the Court docket (see remark right here).
The Q&A-type steerage doc was revealed by the Fee late final week. The doc has already been the article of research and deserved criticism, eg by Marko Turudić and Pedro Telles. They each touch upon most features of the doc intimately, and make good factors.
On this put up, I concentrate on two points arising from the doc and hyperlink them to first rules of procurement, in addition to the broader layers of regulation past the EU.
two Extraordinarily problematic assertions
Within the Q&A doc, the Fee makes two extraordinarily problematic assertions. First, on the extent of transparency to be afforded to choices on participation and, if relevant, differential remedy of third nation operators. Second, on the ‘severability’ of EU, nationwide (and worldwide) principles-based necessities.
Transparency necessities
The Q&A doc states as follows:
Contracting authorities could point out upfront within the tender paperwork their choice to just accept or not participation of non-covered third nation financial operators and, in the event that they admit them, the preparations relevant to their tenders.
They might additionally determine to not make this identified upfront. Within the absence of any reference to this matter within the contract discover / tender specs, the contracting authority / entity nonetheless has the likelihood to just accept or to reject a young from an financial operator from a non-covered nation at any second in the course of the procurement course of (reply to Q5.3, emphasis added).
‘Severability’ of authorized rules by their ‘origin’
The Q&A doc additionally states that:
Financial operators from non-covered international locations don’t take pleasure in any rights deriving from EU public procurement regulation, together with necessities for transparency and proportionality enshrined in EU regulation and transposed into the nationwide authorized order. It’s open to competent nationwide authorities to determine different nationwide provisions (not transposing EU public procurement regulation) on which such financial operators may rely (reply to Q6.2).
And that, in guaranteeing compliance with the precept of the rule of regulation ‘Contracting authorities/ entities could base themselves on nationwide laws that doesn’t transpose EU regulation’ (reply to Q6.4) and, additional, that ‘any doable challenge of compliance with the ECHR would concern nationwide regulation solely and could be unrelated to any occasion of implementation of EU regulation by a Member State’ (reply to Q6.5, emphasis added).
Total place
Mixed, this units out the mixed place that (i) contracting authorities could make choices based mostly on undisclosed standards at any level within the procurement course of and that (ii) any transparency, and so forth necessities in relation to these standards or these choices can solely stem from home laws not transposing EU public procurement regulation / unrelated to any occasion of implementation of EU regulation.
The CJEU benchmark
A primary challenge is that, for my part, the Fee’s assertions solely partially comply with from the Kolin and Qingdao judgments. It’s thus value recalling what the CJEU stated. In Kolin, the Court docket established that:
‘Whereas it’s conceivable that the preparations for remedy of such operators ought to adjust to sure necessities, comparable to transparency or proportionality, an motion by a type of operators looking for to complain that the contracting entity has infringed such necessities could be examined solely within the gentle of nationwide regulation and never of EU regulation’ (C-652/22, para 66).
In Qingdao, the Court docket said that:
‘Whereas it’s conceivable that these remedy preparations ought to adjust to sure rules and necessities, such because the precept of safety of reliable expectations and of authorized certainty, an motion elevating a criticism that the contracting authority has infringed these rules could be examined solely within the gentle of nationwide regulation and never of EU regulation’ (C-266/22, para 66).
another (much less questionable?) interpretation
As we are able to see, the CJEU didn’t set up any laborious boundary on the connection between the nationwide and EU regulation guidelines containing reference to the rules of safety of reliable expectations and of authorized certainty, or (the necessities) of transparency and proportionality. The CJEU stated that the rules as enshrined in EU regulation couldn’t be relied on. Another, home supply could be wanted. The CJEU was (virtually) clear in accepting that (it’s conceivable that) preparations for the remedy of third nation financial operators needed to adjust to transparency, proportionality and so forth requirement, however not as a matter of EU regulation.
A modestly and sensibly artistic interpretation of the CJEU judgments would thus search to not exclude safety afforded by homonymous rules and necessities, whether or not they’re enshrined in the very same home guidelines or not, so long as the applicability of the rules had a justification in a authorized supply apart from EU regulation. This isn’t the identical as demanding that a wholly separate (formulation of the) precept (to the identical impact) exists. It merely requires that there’s another supply of the requirement to abide by the given precept or requirement.
And there are a minimum of two such normal sources. First, the United Nations’ Conference In opposition to Corruption (UNCAC) gives one such supply in requiring that ‘Every State Occasion …, in accordance with the basic rules of its authorized system, take[s] the mandatory steps to determine acceptable methods of procurement, based mostly on transparency, competitors and goal standards in decision-making, which are efficient, inter alia, in stopping corruption’, with a requirement for such methods to explicitly handle problems with transparency, institution upfront of circumstances for participation, and entry to an efficient system of home assessment’ (Artwork 9.1). Second, the ECHR offers the best to honest trial (Artwork 6).
Such an strategy would have allowed some house for Member States to proceed complying with fundamental necessities of administrative regulation and procurement regulation whereas the mess created by the Kolin and Qingdao judgments will get sorted out by way of EU procurement laws. Any arguments that such plan of action would detract from the effet utile of EU regulation would appear destined to fail, on condition that the CJEU had already accepted that participation by third nation operators was doable and that equal remedy was additionally doable—simply not as a matter of EU regulation. The Kolin/Qingdao might have been bracketed as a problem of competence and the true effectiveness of the case regulation been pushed to the reform of the directives in a a lot much less disruptive method.
Conversely, the Fee’s excessive interpretation seeks to wipe out such house for manoeuvre in requiring that the supply of regulation demanding certainty, safety of reliable expectations, transparency or proportionality has nothing to do and is fully unrelated with the transposition of EU regulation. That is an unimaginable threshold to cross, as there can be no jurisdiction that has a set of procurement laws to implement EU regulation, one other one to adjust to UNCAC, one other one to adjust to the ECHR, and so forth.
The truth is, as EU procurement regulation is itself adjusted to these worldwide requirements and necessities, the transposition of the EU directives has been the mechanism to make sure compliance with all these layers of procurement regulation. This can be a scenario that’s merely unimaginable to unbundle. Suggesting in any other case verges on the irresponsible, because it locations contracting authorities able to breach a wide selection of worldwide and home guidelines, in addition to creating vital corruption dangers.
Corruption dangers
Setting challenge of authorized interpretation apart for a second, maybe essentially the most problematic a part of the Q&A doc is the second paragraph of the reply to query 5.3, the place the Fee signifies that contracting authorities could ‘determine to not make [their decision to accept or not participation of non-covered third country economic operators and, if they admit them, the arrangements applicable to their tenders] identified upfront. Within the absence of any reference to this matter within the contract discover / tender specs, the contracting authority / entity nonetheless has the likelihood to just accept or to reject a young from an financial operator from a non-covered nation at any second in the course of the procurement course of‘. Crucially, the European Fee forgot to open (or shut) the sentence with the all vital caveat that that is (at greatest) the place solely for the needs of EU regulation.
For my part, there isn’t a query {that a} contracting authority that determined to function on this method could be in breach of UNCAC and quite a lot of constitutional degree provisions (whatever the particular EU jurisdiction we wish to concentrate on).
And, extra importantly, a contracting authority that determined to behave on this method could be exposing itself to doubtlessly vital corruption dangers. Lack of transparency and never formulating the factors to be utilized in procurement decision-making on the level of launching the process not solely reserves the contracting authority limitless discretion and thus triggers the danger of arbitrariness in decision-making. Extra problematically, it exposes key decision-makers to stress and to dangers of corruption — both by the ‘lined’ entities looking for to influence it to exclude the tender/s by the third nation operator/s, or by the latter looking for the alternative, or each.
the larger image
Finally, the Kolin/Qingdao saga and this Q&A present that we’re liable to dropping sight of the larger image. Procurement guidelines are usually not solely, and even primarily, about commerce liberalisation. They’re important instruments of excellent governance and a supply of self-discipline and integrity within the expenditure of public funds. Given their significance, a number of layers of procurement regulation are overlaid and, whereas they differ of their particulars, all of them share the identical core rules and fundamentals. Searching for to deviate from these, or to restrict them to 1 and solely a type of layers of regulation can merely not work.
It must also be clear that, as a matter of larger image, the inconvenience that generally comes from complying with the rule of regulation and different constitutional-level ensures ought to probably create constraints and difficulties within the implementation and rollout of EU (widespread) coverage, because it does at nationwide degree. The Kolin/Qingdao saga and this Q&A can solely be learn as a prioritisation of the widespread business coverage over good administration and rule of regulation issues. It doesn’t paint a reasonably image and it doesn’t sign a very robust dedication to one of many basic values of the Union, to be frank.
The larger image is simply too that the CJEU had (a minimum of) two methods of addressing these points. One could be to impose a full ban on participation by non-covered third nation operators. The opposite could be to have been extra accepting of the restrictions of ‘policy-making by judgment’ and to have overtly said that, as soon as a 3rd nation operator has not been excluded, authorized protections comply with. By setting such shaky foundations because the Kolin/Qingdao case regulation, the CJEU allows the European Fee to make unhelpful interventions comparable to this one. The opposite a part of the larger image is, as properly, that the European Fee is keen to take precisely zero dangers and that, on this excessive threat aversion, it might probably come to exacerbate issues arising from the case regulation.
