Reshaping the framework of EU public procurement law: European Commission Proposal for a “Directive of the European Parliament and of the Council on public procurement”
The EU legislator has currently plans to reshape the framework of EU public procurement law. The legal basis hereof is the “Green Paper on the modernisation of EU public procurement policy – Towards a more efficient European Procurement Market” (COM(2011) 15 final). As a result of the hereby initiated law making process, as of December 20, 2011 the European Commission has presented three proposals for new European directives on public procurement law:
- Proposal for a “Directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors” (COM(2011) 895 final)
- Proposal for a “Directive of the European Parliament and of the Council on public procurement” (COM(2011) 896 final)
- Proposal for a “Directive of the European Parliament and of the Council on the award of concession contracts” (COM(2011) 897 final)
These legislative proposals have already been passed by the European Commission to the European Parliament and the Council for the purpose of initiating a concrete legislative process.
In particular the proposal for a “Directive of the European Parliament and of the Council on public procurement” which aims at replacing the current “Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts” is likely to have an overall impact on the entire practice of public procurement in the EU.
The respective proposal has lastly been discussed by the Council on May 30, 2012. A first reading by the European Parliament is expected in December 2012.
The political aims of the European Commission regarding its proposal COM(2011) 896 are according to its explanatory memorandum:
- “Increase the efficiency of public spending to ensure the best possible procurement outcomes in terms of value for money. This implies in particular a simplification and flexibilisation of the existing public procurement rules. Streamlined, more efficient procedures will benefit all economic operators and facilitate the participation of SMEs and cross-border bidders.”
- “Allow procurers to make better use of public procurement in support of common societal goals such as protection of the environment, higher resource and energy efficiency, combating climate change, promoting innovation, employment and social inclusion and ensuring the best possible conditions for the provision of high quality social services.”
A practical need of bidders as well procurers for “streamlined, more efficient procedures” and “simplification and flexibilisation of the existing public procurement rules” is something we as public procurement lawyers can generally confirm.
We will continue to monitor the latest activities of the European lawmaker in the field of public procurement law and will report if the above mentioned objectives of the European Commission will be realized in the course of the law making process and which impact the envisaged changes of the legal framework will have on the practice of public procurement. Of major interest for legal practitioners in Germany will be in particular the changes in the national public procurement legal framework which will be entailed by the new EU public procurement law. We will report on this as well.