The EU's Joint Procurement Agreement in the Light of COVID-19: Learning the Correct Lessons from the Pandemic and Identifying Actions for Improvement

Abstract

The rapid spread of COVID-19, firstly in Italy, exerted an impossible pressure on the EU and its Member States. Criticism of the speed of EU’s response to the pandemic, especially with regard to Italy, and signs of a lack of coordination accentuated by an initial “selfish” stance by some Member States, created an early impression of inaction that reflected negatively on the EU. However, after what seemed like a slow start, the EU implemented a coordinated response using a number of different tools that it had at its disposal. Among these was the framework for joint procurement of medical countermeasures established by the Joint Procurement Agreement (JPA).

The present chapter first places at an appropriate level the threshold of expectations, for judging the EU’s early actions, bearing in mind its competences in the field of health; second, examines the performance of the JPA framework and of the related and complementary mechanisms, namely the rescEU stockpile of medical countermeasures, the EU’s Emergency Support Instrument and the Clearing House of Medical Equipment during the COVID-19; and third identifies the correct lessons and makes recommendations for improving the robustness and responsiveness of these mechanisms against future challenges.

The chapter finds that the JPA’s operation during the pandemic proved difficult because of the JPA’s current complex structure but it also observes that improvement can be achieved within the existing EU competence framework. It argues that procurement flexibility, alone, is not a panacea which guarantees efficient outcomes. It also suggests that it is important to identify (or create), within the current EU competence framework, complementary mechanisms to function as efficiency multipliers to improve the procurement and distribution of critical supplies; and that these mechanisms must involve the use of big data and data technology to create coordinated, transparent information networks to help buyers acquire a clear, up-to-date picture of market conditions. Finally, it suggests that introducing an exclusivity conditionality in the JPA system, preventing participating Member States from conducting parallel procurements, should be examined carefully as it may undermine rather than enhance the JPA framework.

The chapter is divided into three main parts. The first examines the Joint Procurement framework and takes stock of its performance during the pandemic. The second part analyses the complementary initiatives referred to above. The final part reflects on the lessons from the pandemic and provides recommendations.

Keywords: Joint Procurement Agreement, JPA, Health Procurement, cross-border Procurement Collaboration, RescEU Stockpile, Emergency Support Instrument, Clearing House of Medical Equipment, EU Law, Public Procurement, Extreme Urgency Procurement, European Health Union, COVID-19, Procurement of Medical Supplies

JEL Classification: H57, H5, I18, I19, F52, F53, F55, K33, K40, L14, Q37