Europe and Public Sector Procurement
On May 28, 2014, the Official Journal of the European Communities published what are known as the “fourth generation” directives on public sector procurement. The deadline given to the member states to transpose these directives into their national laws expired four months ago, specifically, on April 18, 2016.
During the transposition period, the Spanish State transposed some of the provisions of the directives by amending, through various pieces of legislation, Legislative Royal Decree 3/2011, of November 14, 2011, approving the revised Public Sector Contracts Law. The transposition process was expected to culminate with a new public sector contracts law, the preliminary draft of which was approved by the Council of Ministers on April 17, 2015.
However, the dissolution of the Spanish Parliament before the general elections held on December 2, 2015 cut short the transposition process, which has led to a situation of legal uncertainty as a result of the direct effect of EU directives.
Not all of the provisions of EU directives are directly applicable in the member states, though, as the case law of the Court of Justice of the European Union requires that the provisions in question contain a clear, precise and unconditional mandate.
Moreover, their effect can only be “vertically upward”, that is, the provisions can only be relied upon by individuals to assert their rights against the member state.
This requires performing a task of interpretation to determine which provisions can be applied directly. To facilitate this task, various public agencies have issued reports and recommendations, including most notably the recommendation issued by the State Public Procurement Advisory Board to the procurement agencies regarding the application of the new public procurement directives, published in Official State Gazette No. 66 of March 17, 2016, and the study document on the same subject approved on March 1, 2016 at a joint meeting of all of the Administrative Public Procurement Tribunals existing in Spain.
This transitional situation undoubtedly requires special rigor, knowledge and analysis of public procurement matters on the part of economic operators so that they can adequately protect their interests when participating in tender procedures.
Garrigues Department of Administrative Law