Many Member States question the need to merge the three main Directives governing traditional public procurement, procurement in special sectors, and concessions (2014/24, 2014/25 and 2014/23 respectively) into a single Regulation, as the European Commission proposed in early September (see EUROPE 13934/1).
France is among the countries most vocal on this issue. In its view, the choice of a Regulation is “all the more regrettable that the majority of Member States have on several occasion (...), expressed their concerns”, according to a Council of the EU document setting out the preliminary positions of around a dozen EU countries. This concern “cannot be ignored”, the French authorities add. They fear that contracting authorities will lose room for manoeuvre in their use of public procurement procedures.
Slovenia takes a similar view and is not convinced that a Regulation is justified, warning that it could result in a “more complex, fragmented and legally uncertain” regulatory framework.
Other countries hold similar but less categorical positions, focusing mainly on the relationship between EU and national legislation. Denmark wants a comprehensive overview of all the provisions in the Regulation that would allow national rules to be adopted. National rules will remain necessary to organise public procurement procedures and handle legal challenges in the event of disputes, Croatia believes.
Poland, meanwhile, observes that the Regulation presented by the Commission remains “very general in nature”. Because this approach will require additional national rules, it risks creating “serious difficulties” for public authorities, the Polish authorities believe.
EU preference. One of the legislative reform’s new features is the possibility for public authorities to restrict participation in tenders to European companies or to companies from third countries that are parties to the WTO Agreement on public procurement or with which the EU has concluded a free trade agreement containing public procurement provisions.
European preference is among the objectives championed by Italy. Other countries are seeking clarification. Denmark, for example, wants to know under what circumstances and through which procedures the European Commission will be able to require EU public buyers to apply European preference. Hungary, for its part, questions how the future European preference rules will relate to the International Procurement Instrument (IPI - see EUROPE 12910/8).
For the French authorities, the mechanisms for giving priority to European companies or excluding certain bidders from third countries from tenders are “one of the fundamental aspects” of the legislation. Paris wants to make the interaction between the future cross-cutting EU public procurement framework and sectoral legislation, such as the Industrial Accelerator Act and the Critical Raw Materials Act, which provide for specific European preference provisions, more effective in practice. France also suggests making European preference “mandatory” in certain strategic sectors.
Strategic objectives. Several countries have also commented on the provisions of the proposed Regulation that provide for the pursuit of EU strategic objectives – environmental protection, social justice and European sovereignty – through public procurement.
Poland believes this approach creates an “additional burden” by requiring contracting authorities to justify public procurement procedures that do not take strategic objectives into account. Latvia shares this concern, questioning whether references to strategic objectives in public procurement should be made mandatory.
France supports the approach taken in the legislative proposal, particularly for food purchases, with a view to supporting organic farming and protected geographical indications. Paris also warns against removing the mandatory requirement to use environmental performance criteria.
Slovenia, meanwhile, favours excluding purchases of food and medicines from the scope of the public procurement framework.
At the Council of the EU, experts are continuing their examination of the legislation. Although it is too early to submit a compromise text, the Irish Presidency wants to put the matter on the agenda of the Competitiveness Council on Thursday 3 December so that Member States can provide public guidance for the technical work that will continue under the Lithuanian Presidency.
See the Council of the EU document: https://aeur.eu/f/o85 (Original version in French by Mathieu Bion)