An Ever-Changing Scope? The Expansive Boundaries of EU Public Procurement Rules, Extraterritoriality and the Court of Justice

Presented at Research Workshop "Extraterritoriality of EU Law & Human Rights after Lisbon: Scope and Boundaries", held at the Sussex European Institute – 13 & 14 July 2017

10 Pages Posted: 17 Jul 2017

Date Written: July 11, 2017

Abstract

This paper looks at how the EU public procurement rules have shown a tendency to permanently expand their scope of application, both within and outside the EU. Inside the EU, the expansion has primarily resulted from blurred coverage boundaries and a creeping application outside their explicit scope. Outside the EU, the extraterritoriality has concerned scenarios such as the applicability of EU financial rules to procurement carried out as part of the EU’s external action in other areas (such as common foreign and security policy), or the regulatory transfer (or ‘export’) of EU procurement rules as part of trade deals—notably, the EU-Canada CETA, but also the EU-Ukraine DCFTA.

Concentrating solely on the ‘external’ dimension of the expansive scope of EU public procurement rules, in trying to explore some of the impacts of the extraterritorial effects of EU public procurement law on the legal and regulatory systems of third countries, this paper focuses on the implications that this expansion and extraterritoriality can have in terms of jurisdiction of the Court of Justice, as well as in terms of difficulties for the coordination of remedies systems in the area of public procurement. The paper concludes that the extraterritorial expansiveness of the EU’s public procurement rules is creating areas of potential legal uncertainty that deserve further analysis. Given the highly speculative nature of those scenarios at this stage, however, the paper does not attempt to provide any specific answers or tentative solutions to the issues it raises.

Keywords: Public Procurement, Trade, Extraterritoriality, Jurisdiction, Court of Justice, Challenges, Remedies

JEL Classification: H57, K23, K33, K42

Suggested Citation

Sanchez-Graells, Albert, An Ever-Changing Scope? The Expansive Boundaries of EU Public Procurement Rules, Extraterritoriality and the Court of Justice (July 11, 2017). Presented at Research Workshop "Extraterritoriality of EU Law & Human Rights after Lisbon: Scope and Boundaries", held at the Sussex European Institute – 13 & 14 July 2017. Available at SSRN: https://ssrn.com/abstract=3000256 or http://dx.doi.org/10.2139/ssrn.3000256

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

Wills Memorial Building
Queen's Road Clifton
Bristol, BS8 1RJ
United Kingdom

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