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Author: Charles M. Clarke

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An Overview of the CJEU’s Current Approach Towards the Application of the Underlying Treaty Principles Governing Concessions journal article

Does the New Concessions Directive Reflect the Court’s Progressive Functional Methodology and Provide for Legal Certainty?

Charles M. Clarke

European Procurement & Public Private Partnership Law Review, Volume 10 (2015), Issue 4, Page 273 - 285

The Court of Justice of the European Union (“CJEU” or the “Court”) has consistently upheld that contracting authorities must competitively award (works and services), concession contracts that have a cross-border interest, in accordance with the general principles of the Treaty (i.e., must provide a fair, non-discriminatory and transparent award procedure). The Court has also consistently identified the difference between service concessions and general public service contracts (i.e., the transfer of the operating risk from the contracting authority to the private economic operator). Through its practical interpretation, the Court has progressively tried to fulfil the legislator’s principal goal, of the opening up Member States concessions’ markets to competition, in line with the Single Market and enhanced consumer welfare goals. The legal definition for concessions has been heavily governed by the fundamental Treaty principles and the interpretation of the case-law of the CJEU (allowing for a case-by-case approach), which has been interpreted to varying standards across Member States, causing national fragmentation to the detriment of the Single Market, economic operators and ultimately to EU citizens. While the new Concessions Directive may offer enhanced legal certainty to both economic operators and contracting authorities by adopting a majority of the principles developed by the CJEU, the new rules (including the Directive’s triggering threshold) somewhat limit the scope of the overarching objectives.

The CJEU’s evolving Interpretation of ‘In-house’ Arrangements under the EU Public Procurement Rules: A Functional or Formal Approach? journal article

Charles M. Clarke

European Procurement & Public Private Partnership Law Review, Volume 10 (2015), Issue 2, Page 111 - 125

The recent case law of the Court of Justice of the European Union (“CJEU”) suggests that the Court is maintaining a functional and cohesive approach when being faced with ‘in-house’ disputes. The Court appears to line its reasoning in accordance with the overarching goal of opening up Member States public procurement markets to enhance competition between private and public operators in the delivery of public works and services contracts. The principles developed by the CJEU mandates that a contracting authority is only exempted from commencing an award procedure for a public works, supplies or service contract where it evidently exercises control over the winning tenderer, similar to that which it exercises over its own departments, with the tenderer carrying out the essential part of its activities only with the contracting authorities to which it belongs. A second exclusion from the EU Public Procurement rules is permitted where public authorities contract between themselves to provide services which can only be supported on the understanding that they are performing a service(s) (a public task) which is purely of a ‘public interest’ nature. This paper seeks to analyse the rulings of the CJEU and examine its approach towards ‘in-house’ arrangements. While, the forthcoming Public Procurement Directive offers legal certainty it also raises potential uncertainties with regards to the exemption; however, it is likely that in the near future the CJEU will keep business as usual and follow functional approach on a case-by-case basis.

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