Albert Sánchez Graells

WHY CALL IT ESSENTIAL NATIONAL INTEREST WHEN YOU MEAN CONTROL? THOUGHTS ON THE CONVERGING EXCEPTIONS TO THE EU PROCUREMENT RULES A PROPOS THE AUSTRIAN PASSPORTS CASE (C-187/16)* In its Judgment of 20 March 2018 in Commission v Austria (Imprimerie d’État), C-187/16, EU:C:2018:194, the Court (...)

Do EU procurement & State aid rules conflict on possibility for consortium members to ’go it alone’? (C-127/16 P)* In its Judgment of 7 March 2018 in SNCF Mobilités v Commission, C-127/16 P, EU:C:2018:165, in the context of the analysis of a measure of State aid for restructuring and (...)

THE END OF PROCUREMENT AS WE KNEW IT? CJEU CONSOLIDATES FALK PHARMA APPROACH TO DEFINITION OF PROCUREMENT IN TIRKKONEN (C-9/17)* In its Judgment of 1 March 2018 in Tirkkonen, C-9/17, EU:C:2018:142, the Court of Justice of the European Union (CJEU) had to assess whether a scheme with the (...)

CJEU GREENLIGHTS ‘REMEDYING PROCEDURAL SHORT-COMINGS IN RETURN FOR (PROPORTIONATE) PAYMENT’ (C-523/16 & C-536/16)* In its Judgment of 28 February 2018 in MA.T.I. SUD, C-523/16, EU:C:2018:135, the Court of Justice of the European Union (CJEU) accepted the compatibility with EU public (...)

WHEN WILL YOU SHOW ME THE PAPERS? TECHNICAL CAPACITY, TECHNICAL DOSSIERS AND VERIFICATION DURING THE PROCUREMENT PROCESS (C-14/17)* In his Opinion of 28 February 2018 in VAR, C-14/17, EU:C:2018:135 (not available in English), AG Campos Sánchez-Bordona addressed a tricky preliminary question (...)

INTERESTING CASE ON FUNCTIONAL APPROACH TO MULTIPLE BIDDING AND EXCLUSION OF TENDERERS (C-144/17)* its Judgment of 8 February 2018 in Lloyd’s of London, C-144/17, EU:C:2018:78, the Court of Justice of the European Union (CJEU) confirmed its increasingly pro-competitive and anti-formalistic (...)

REJECTION OF TENDERS FOR EU RESEARCH FUNDING, ANY LESSONS FOR PROCUREMENT? (T-76/15)* In its Judgment of 18 January 2018 in Kenup Foundation and Others v EIT, T-76/15, EU:T:2018:9, the General Court of the Court of Justice of the EU (GC) assessed the compatibility with EU law of the (...)

ECJ confirms discretion to exclude tenderers for not updating self-certifications and points towards potential general obligation of sincere cooperation (C-178/16)* In its Judgment of 20 December 2017 in Impresa di Costruzioni Ing. E. Mantovani and RTI Mantovani e Guerrato, C-178/16, (...)

Two recent cases on transparency & access to documents in EU Institutional procurement (I) (T-136/15)* Two recent General Court judgments have addressed different aspects of transparency duties and access to documents requirements in EU Institutional procurement [for discussion, see A (...)

TWO RECENT CASES ON TRANSPARENCY & ACCESS TO DOCUMENTS IN EU INSTITUTIONAL PROCUREMENT (II) (T-164/15)* Two recent General Court judgments have addressed different aspects of transparency duties and access to documents requirements in EU Institutional procurement [for discussion, see A (...)

AG suggests CJUE should declare fines for clarification or supplementation of procurement documents as contrary to EU law only if disproportionate (C-523/16)* In his Opinion of 15 November 2017 in case MA.T.I. SUD, C-523/16, EU:C:2017:868, Advocate General Campos Sánchez-Bordona has (...)

Mixed views on General Court decision concerning claim of ’artificial narrowing of competition’ through too strict procurement selection requirements (T-668/15)* In its Judgment of 10 November 2017 in Jema Energy v Entreprise, T-668/15 EU:T:2017:796 (only available in Spanish and French), (...)

Funding of in-house entities, CPBs and risks of state aid, some thoughts re Aanbestedingskalender (T-138/15)* In its Judgment of 28 September 2017, Aanbestedingskalender & Others v Commission, T-138/15, EU:T:2017:675, the General Court (GC) rejected a complaint against a previous (...)

ECJ deviates from AG Sharpston’s opinion and accepts use of "sure refund" good conduct guarantees in public procurement litigation (C-439/14 and C-488/14)* In its Judgment of 15 September 2016 in Star Storage, joined cases C-439/14 and C-488/14, EU:C:2016:688, the European Court of Justice (...)

ECJ confirms that procurement rules do not apply to licences or authorisations ("concessions") for betting and gambling services (C-225/15)* In its Judgment of 8 September 2016 in Politanò, C-225/15, EU:C:2016:645, the European Court of Justice (ECJ) followed the Opinion of Advocate General (...)

The intersection of public procurement and competition law has been receiving increasing attention since I first wrote this foreword for the 2011 edition of this special issue of e-Competitions on public procurement . As discussed in the second edition of this foreword , the 2014 revision of (...)

CJEU implicitly rejects GC’s views on subjective assessment of two-part State aid measures under Art 107(1) TFEU (C-15/14)* In its Judgment in Commission v MOL, C-15/14, EU:C:2015:362, the CJEU upheld the previous Judgment of the GC where the selectivity of two-part State aid measures was (...)

Social housing, State aid and procurement show up again in EU Courts’ case law (T-397/12)* In its Judgment in Diputación Foral de Bizkaia v Commission, T-397/12, EU:T:2015:291 (only available in ES and FR), the General Court (GC) of the Court of Justice of the European Union (CJEU) has (...)

Marketing and the perfect crime? CJEU engages in a strange discussion of operational vs commercial discounts and issues ruling against mail consolidators (C-340/13, bpost)* In its Judgment in bpost, C-340/13, EU:C:2015:77, the CJEU has ruled that a discount system that offers reduced postal (...)

AG Szpunar submits that German nuclear taxes are not State aid, but his reasoning is totally unimaginative (C-5/14)* In its Opinion in Kernkraftwerke Lippe-Ems, C-5/14, EU:C:2015:51 (not available in English), AG Spuznar has submitted to the CJEU that a German tax on fissionable nuclear (...)

A criticism of the CJEU’s ruling that allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid (Eventech, C-518/13)* In its judgment of 14 January 2015 in Eventech (C-518/13, EU:C:2015:9), the Court of Justice of the EU (...)

Exclusive rights, State aid and lottery: a winning ticket worth an extended monopoly? (T-58/13)* In its Judgment in Club Hotel Loutraki and Others v Commission, T-58/13, EU:T:2015:1, the General Court (GC) has confirmed the previous Decision of the European Commission and considered that (...)

A ’private tax-payer test’ for State aid? ... or how the Commission is not getting it (about the Apple APA case)* Thanks to @Detig’s twitter encouragement, I have finally set out to read the recently released 11 June 2014 Decision of the European Commission SA.38373 in the case of alleged (...)

Neighbouring the Uber conflicts: AG Wahl’s Opinion on London’s bus/taxi lanes as State aid (C-518/13)* The attention raised by recent complaints and strikes against Uber’s intended revolution of the local ground transportation system in big cities has put the taxi sector on the spotlight. (...)

CJEU fuels joint application of Arts 102 & 106(1) TFEU to suppress unequal conditions of competition (C-553/12P)* In its Judgment in Commission v DEI, C-553/12 P, EU:C:2014:2083, the CJEU has (further) clarified the threshold of competitive distortion required in the application of Arts (...)

The GC pushes for overcompliance with EU public procurement rules in the provision of public services (T-309/12)* In its Judgment in Zweckverband Tierkörperbeseitigung v Commission, T-309/12, EU:T:2014:676, the GC has assessed the compatibility with EU State aid rules of a system of (...)

... and Cut! Lights Out for the €274mn Spanish "Ciudad de la Luz" Film Studios (T-319/12)* In its Judgment of 3 July 2014 in Spain v Commission (Ciudad de la Luz), joined cases T-319/12 and T-321/12, EU:T:2014:604 (not available in English), the General Court (GC) reviewed Commission’s (...)

Competition infringer: You don’t want the EU Commission as your banker (T-564/10)* In its Judgment in Quimitécnica.com and de Mello v Commission, T-564/10, EU:T:2014:583, the General Court has addressed a rather strange issue concerning the interest rates applicable by the European (...)

It Won’t Last Long? CJEU takes a functional, competition-based approach to in-house provision that questoins the criteria in the new EU procurement directives (C-574/12)* In its Judgment in Centro Hospitalar de Setúbal and SUCH, C-574/12, EU:C:2014:2004, the Court of Justice of the EU (CJEU) (...)

State aid and (university) software licensing: who’s interested? (T-488/11)* In its Judgment of 12 June 2014 in case Sarc v Commission, T-488/11, EU:T:2014:441, the General Court of the EU (GC) has assessed an interesting case concerned with the licensing of software developed at a Dutch (...)

Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’* After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on (...)

GC sets burden of proof of conflicts of interest in procurement too high (T-4/13)* In its Judgment in Communicaid Group v Commission, T-4/13, EU:T:2014:431, the General Court (GC) decided another appeal against EU Institution’s public procurement decisions. In this case, the procurement was (...)

This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. When the CJEU opens the umbrella, lawyers and economists get ready for a warm shower of damages claims (C-557/12)* In its Judgment in Kone, C-557/12, (...)

Both public procurement and competition law constitute particularly relevant fields of public policy and legislation in the EU. Their relevance throughout the process of construction of the internal market, and their key role in preserving the advances made so far and in pushing European (...)

A new European Dynamics challenge rejected: let’s focus on admissibility of claims (T-553/11)* In its Judgment of 23 May 2014 in case T-553/11 European Dynamics Luxembourg v ECB, the General Court (GC) has ruled on yet another challenge filed by European Dynamics (ED) against procurement (...)

Are future (lease) contracts covered by the EU public procurement directives (C-213/13)* In his Opinion of 15 May 2014 in case C-213/13 Impresa Pizzarotti (not available in English, so the following discussion is based on my reading of the Spanish version), Advocate General Nils Wahl has (...)

Has Directive 2014/24 come too late for horizontal in-house provision? (C-15/13)* In its recent Judgment in case C-15/13 of 8 May 2014 Datenlotsen Informationssysteme, the CJEU has addressed a so-called ’horizontal’ in-house provision of goods and rejected the proposal of AG Mengozzi to (...)

AG proposes to reduce safe harbour for directly awarded public contracts subjected to prior transparency (C-19/13)* In his Opinion of 10 April 2014 in case C-19/13 Fastweb, Advocate General Bot has proposed an interpretation of Art 2d(4) of Directive 89/665 (as amended by dir 2007/66) that (...)

Recent CJEU and GC views on the "economic advantage" element in State aid cases (C-559/12 and T-150/12)* In two recent cases, the Court of Justice of the EU (CJEU) and the General Court (GC) have reassessed the element of "economic advantage" required in the prohibition of State aid in Art (...)

GC hints at a reduction of the burden of motivation of administrative decisions under EU law (T-319/11)* In its Judgment of 8 April 2014 in case T-319/11 ABN Amro Group v Commission, the General Court has indicated that the context in which an administrative decision is adopted may reduce (...)

Recent CJEU and GC views on the "economic advantage" element in State aid cases (C-559/12 and T-150/12)* In two recent cases, the Court of Justice of the EU (CJEU) and the General Court (GC) have reassessed the element of "economic advantage" required in the prohibition of State aid in Art (...)

CJEU further pushes for a universal application of the ’market economy private investor test’ (C-224/12)* In its Judgment of 3 April 2014 in case C-224/12 Commission v Netherlands and ING Groep, the Court of Justice of the European Union (CJEU) has followed its antiformalistic approach to (...)

CJEU clearly indicates total lack of will to effectively become EU’s constitutional court (C-206/13)* In its Judgment of 6 March 2014 in case C-206/13 Siragusa, the Court of Justice of the EU has continued developing its case law on the lack of applicability / jurisdiction to interpret the (...)

The new Directive on Concessions is basically unnecessary, but creates red tape, duplication & legal uncertainty (Dir 2014/23)* I have been working on the preparation of a commentary to the first part of the new Directive 2014/23 on the award of concession contracts (OJ L 94, 28/03/2014, (...)

The "new" principle of competition in Directive 2014/24: a new set of presumptions?* The adoption of Directive 2014/24 of 26 February 2014 has resulted in the consolidation of the principle of competition in Article 18. According to the wording of this provision: "The design of the (...)

Directive 2014/23 on concessions and the ’Frankenstein effect’* The more one analyses the content of Directive 2014/23 on concessions (the Concessions Directive), the more one realises that it is full of unnecessary complexities and that it is (unfortunately) a horrible example of the (...)

US GAO reports on test commercial items program for public procurement* In a recently published report, the US Government Accountability Office (GAO) assessed the status of a test program for the acquisition of commercial items and services—i.e. are those that generally available in the (...)

A first reaction to AG Kokott’s KONE Opinion (C-557/12)* AG Kokott’s Opinion of 30 January 2014 in case C-557/12 KONE is generating significant debate (see the very interesting criticism in EUTopia) as it deals with a very complicated and controversial issue that could either spur or (...)

AG Mengozzi on extension of "in-house" to "public house" procurement exception (C-15/13)* In his Opinion of 23 January 2014 in case C-15/13 Datenlotsen Informationssysteme (not available in English), Advocate General Mengozzi advocated for an extension of the "in-house" public procurement (...)

"National brands" and State aid: AG Wathelet on investing in "State branding" (C-533 & 536/12)* In his Opinion of 15 January 2014 in joined cases C-533/12 P and C-536/12 P SNCM v Corsica Ferries France, Advocate General Wathelet has addressed an interesting (and creative) argument (...)

Principle of competition finally consolidated into public procurement directives* The provisional text of the new public procurement Directives has been made available by the European Parliament. In the final version of 15 of January, the principle of competition is finally consolidated in (...)

CJEU follows AG Jääskinen in revisiting PreussenElektra and minimising Doux Elevages’ requirements for State imputability of aid measures (C-262/12)* In its Judgment of 19 December 2013 in case C-262/12 Vent De Colère and Others, the Court of Justice of the EU has largely followed AG (...)

What’s left of the ’new limb’ of Art 263(4) TFEU after Inuit and Telefonica? (C-274/12 P)* In its Judgment of 19 December in case C-274/12 P Telefonica v Commission, the CJEU has continued to define (and minimise) the scope of Article 263(4) TFEU and, particularly, the ’new’ third limb (...)

CJEU rubber stamps Italian minimum tariffs for certification in public procurement, subject to proportionality (C-327/12)* In its Judgment of 12 December 2013 in case C-327/12 Soa Nazionale Costruttori, the Court of Justice of the EU has followed rather closely AG Cruz Villalon’s Opinion (...)

CJEU: vertical effect of Directives goes both ways (C-425/12)* The Judgment of the CJEU of 12 December 2013 in case C-425/12 Portgás may appear to be of interest only for public procurement aficionados (and, even then, only for hardcore ones), as it deals with the potential applicability of (...)

CJEU strengthens Commission’s enforcement monopoly in State aid (C-111/10) and jeopardises its consistent enforcement with other EU policies (C-272/12)* In two recent Judgments of 4 December 2013 (C-111/10, Commission v Council) and 10 December 2013 (C-272/12, Commission v Ireland and (...)

CJEU on renegotiation of mandatory technical conditions in negotiated procedures: A good case? (C-561/12)* In its Judgment of 5 December 2013 in case C-561/12 Nordecon and Ramboll Eesti, the CJEU has ruled on the interpretation of Article 30(2) of Directive 2004/18 as regards the negotiation (...)

CJEU strengthens Commission’s enforcement monopoly in State aid (C-111/10) and jeopardises its consistent enforcement with other EU policies (C-272/12)* In two recent Judgments of 4 December 2013 (C-111/10, Commission v Council) and 10 December 2013 (C-272/12, Commission v Ireland and (...)

Of lost emails, the duty to state reasons and a dimming light in the horizon of eProcurement (T-424/12)* In its Judgment of 28 November 2013 in case T-424/12 UAB Gaumina v Institut européen pour l’égalité entre les hommes et les femmes (EIGE), the General Court has ruled once more on the (...)

It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)* In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)

GPS’ strategy and planning framework agreement could have been fatally flawed (or the joys of copy & paste)* The Government Procurement Service (GPS) has recently announced the entry into force of a new framework agreement for strategy & planning services that gives all public sector (...)

CJEU kicks new #concessions Directive in the shins (C-388/12)* In its Judgment of 14 November 2013 in case C-388/12 Comune di Ancona, the CJEU has put forward an argument for the existence of cross-border interest in the award of (public service) concession contracts that openly challenges (...)

CJEU rejects avoidance of litigation as a valid ’overriding reason in the public interest’ justifying a direct award of a concession contract (C-212/12)* In its Judgment of 14 November 2013 in case C-221/12 Belgacom, the CJEU has rejected that the avoidance of litigation can be considered a (...)

GC rules on two-part State aid measures and selectivity under Art 107(1) TFEU (T-499/10)* In its Judgment of 12 November 2013 in case T-499/10 MOL v Commission, the General Court has found that an authorisation agreement that froze the mining fees payable for the exploitation of hydrocarbon (...)

"Ne bis in idem" in State aid control? CJEU quashes Deutsche Post decision (C-77/12 P)* In its Judgment of 24 October 2013 in case C-77/12 P Deutsche Post v Commission, the Court of Justice of the EU quashed a Judgment of the General Court (T-421/07) and (indirectly) questioned a decision (...)

Maybe not such a global appraisal of State aid after all: CJEU backtracks from a truly economic approach (C-124/10)* In an interesting recent paper, Pablo Ibáñez Colomo conducts a very detailed statistical overview of State Aid Litigation before EU Courts (2004–2012) Journal of European (...)

3 more instalments in the Evropaïki Dynamiki saga: one successful appeal (T-638/11)* Today (15 October 2013), the General Court has issued three judgments that add to the ’Evropaïki Dynamiki saga’. In two of them (T-474/10 and T-457/10), the famous challenger of EU Institutions’ procurement (...)

A jigsaw of qualifications or a procurement puzzle?: CJEU launches a depth charge against certification systems (C-94/12)* In its Judgment of 10 October 2013 in case C-94/12 Swm Costruzioni 2 and Mannocchi Luigino, the Court of Justice of the EU has followed the Opinion of AG Jääskinen (...)

CJEU flexibilises treatment of formally non-compliant bids in public procurement (C-336/12)* In its Judgment of 10 October 2013 in case C-336/12 Manova, the Court of Justice of the EU (CJEU) has followed its own approach in Slovensko and created some room for the flexible interpretation of (...)

AG Cruz Villalon on access to leniency applications: A stringent test. Really? (C-365/12)* In his Opinion of 3 October 2013 in case C-365/12 EnBW Energie, Advocate General Cruz Villalon has proposed a holistic interpretation of the regulatory schemes relating to access to documents of the (...)

Spanish competition watchdog CNMC issues report on health care outsourcing procurement* The Spanish Competition Authority has recently published a report on the application of its Guide on Public Procurement and Competition to public health care provision-related procurement in Spain (only (...)

AG Cruz Villalon opposes Italian minimum #tariffs for #public procurement #certification (C-327/12)* In his Opinion of 5 September 2013 in case C-327/12 Soa Nazionale Costruttori (not available in English), AG Cruz Villalon analyses the compatibility with EU free movement (ie freedom of (...)

In its Judgment of 8 May 2013 in Joined Cases C-197/11 & C-203/11 Libert and Others, the Court of Justice of the European Union has quashed the Belgian ’Living in Your Own Region’ scheme, whereby the acquisition of land and property in certain parts of the country was restricted on grounds (...)

New Paper: A critical assessment of the new health care procurement rules in the UK* The recently adopted UK National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 include an interesting (and somehow unsettling) provision authorising anti-competitive (...)

With a little help from my friends: A flexible and competition-oriented interpretation of rules on reliance on third party capabilities in public procurement (Opinion in C-94/12)* (This is an extended version of the comment previously posted on Albert’s personal blog). According to the (...)

Why is #competition law so special? Or how #leniency will kill private #damages actions (AG C-536/11)* In his Opinion of 7 February 2013 in case C-536/11 Donau Chemie and Others, Advocate General Jääskinen has developed a line of reasoning that goes well beyond the issue at hand (whether (...)

On 22 January 2013, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales, SCATCA) issued its Decision 29/2013 regarding the award of a contract for the disposal of waste and hazardous substances generated by the regional (...)

In-house providing and (minimum) "effective" public control: Sunset or breaking dawn for purely public (commercial) service providers? (C‑182 and 183/11)* In its Judgment of 29 November 2012 in Joined Cases C‑182/11 and C‑183/11, Econord SpA v Comune di Cagno and Comune di Varese (C-182/11) (...)

Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?* Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues (...)

Again on procurement debriefing and its excesses: Extent of the duty to give (very detailed) reasons to bidders and right to a fair trial (T-183/10)* In its Judgment of 10 October 2012 in case T‑183/10 Sviluppo Globale GEIE v Commission, the General Court has issued a new decision concerned (...)

Risk of anti-competitive collusion after excessive level of transparency in public procurement debriefing?* In its Judgment of 4 October 2012 in case C‑629/11 P Evropaïki Dynamiki v Commission (ESP-ISEP), the Court of Justice has issued another interesting decision on what should be (...)

On 26 September 2012, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales) issued its Decision 210/2012 regarding the award of a contract for the provision of postal services to the Spanish Sickness and Pension Fund for (...)

On 30 March 2012, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales) issued its Decision 83/2012 regarding the award of a contract for the supply of IT consumables where the contracting authority had excluded the (...)

On 29 February 2012, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales, CATCA) issued its Decision 33/2012 regarding the treatment of confidential information and the protection of business secrets in tender debriefing (...)

On 5 January 2012, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales) issued its Decision 08/2012 regarding the award of a services contract to a tenderer that had submitted an apparently anormally low tender. The (...)