The Public Procurement Directives are in the midst of revision and we expect the Commission to publish a draft Regulation in early September. Since everyone likes to be told what to do (especially by an academic), I decided to write a paper on what should the Commission do with the participation of third-country economic operators in the EU public procurement market.

The paper should of course be read together with my new book, but where the paper diverges is the constitutional angle – analyzing the mess we have now from the perspective of Article 2(1) and 4(3) TEU, and Article 47 CFREU.

I’m trying to make a point that continuing to allow 250k+ contracting authorities across the EU so much discretion in deciding whether to allow participation and under what conditions; and allowing Member States to deny remedies is untenable. Therefore, the Commission (while it doesn’t have to) needs to legislate these issues comprehensively. This requires clear and unequivocal rules that minimize permissive language like ‘may’ and ‘could’. I argue this is the only way to make the rules simpler, to achieve the EU’s goals in this space with regard to the external dimension of EU public procurement, and the only logical way forward taking into account the fact that uniformity of EU procurement law is high on the list of the Commission’s priorities – judging by the preferred legal instrument this time around. As a famous Mandalorian would say – ”This is the way.”

This is of course a draft paper, and I plan to substantively amend it after the draft Regulation is published. But I would love to see what you think, and would really appreciate any and all comments! Here’s the link:

Exclusive Competence Without Comprehensive Legislation: The Constitutional Deficit in the Treatment of Third-Country Economic Operators in EU Public Procurement

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