Regulations and Directives - food for thought

EU Law 2018 - Unit IIA Extract.png

This is a slide I will be using on Monday’s EU law lecture. I have not drilled down into the details, namely if there is any evolution or if there has been an increase on Commission’s delegated Regulations but I was suprised at the findings.

The EU legal secondary law framework is mostly one of Regulations and not Directives, with all the implications that brings.

New working paper on European Union Citizenship available

I have uploaded to SSRN a new working paper entitled "Protection from Exclusion: A Reassessment of Union Citizenship in the Time of Brexit" co-authored with Volker Roeben, Keith Bush, Petra Minnerop and Jukka Snell.

Here's the abstract:

"The received wisdom on Union Citizenship is statist: it is thought to be intrinsically connected with the State of nationality being a Member State of the European Union, and so no one can be a Union citizen otherwise. The purpose of this article is to challenge this conception. It argues that Union Citizenship institutionalises the idea of individual membership in the EU and its legal order, into which individuals are included and from which they cannot be excluded en masse either by the European Union or the Member States. Citizens are protected against physical exclusion by way of extradition and expulsion and, even more so, against being stripped of Union Citizenship against their will. Union Citizenship, once conferred, cannot be removed without cause in the person of the citizen, even though the rights contained therein may change over time.

This is, however, precisely the spectre of Brexit. The effect of this first withdrawal of a Member State on the citizenships of UK and EU-27 nationals remains unclear, and the statist and individualist conceptions of Union Citizenship produce diametrically opposed consequences. The statist conception implies that Brexit extinguishes the Union Citizenship of UK nationals. But the individualist conception of Union Citizenship implies that the citizenships, and the rights contained therein, will survive the end of UK membership in the EU. This ‘Continuity’ Union Citizenship becomes the salient touchstone of this conceptual shift advocated here; EU (and UK) action to preserve it, either through the Withdrawal Agreement or legislation, is declaratory rather than constitutive. If this is correct, little changes as a consequence of Brexit.

The principal argument in support of the received statist conception is that the Treaties connect Union Citizenship with EU membership of the State of nationality. But the article argues that the individualistic idea of Union Citizenship has indeed been institutionalised by the Lisbon Treaty, with the analysis proceeding in four steps. First, Union Citizenship is not just a status but a fundamental right. Any interference with it is thus subject to the principle of proportionality and cannot affect its core. Second, deciding on the acquisition and loss of Union Citizenship is not a right but a competence of the Member States. This competence is not unlimited. Third, Union Citizenship is autonomous from the nationality of a Member State. Third-Country nationals may continue to hold the rights of Union Citizenship provided a sufficiently close link exists with the EU. Fourth and finally, the EU is obligated to ensure legal certainty for citizenships beyond the end of a State’s membership in the EU, and the Lisbon Treaty confers the requisite competence in line with the international law of treaties."

This paper is based on the report we co-authored last year for Jill Evans MEP entitled "The Feasibility of Associate EU Citizenship for UK Citizens post-Brexit."

Procurement Week presentation on electronic procurement in Portugal

A couple of weeks ago I delivered a presentation on electronic procurement in Portugal at this year's Procurement Week conference in Bangor. As some of you have asked for the presentation, here it is embedded in all its glory. A downloadable PDF is available on the Presentations tab.

New paper: Public procurement financial thresholds in the EU and their relationship with the GPA

I have just uploaded to my SSRN repository a new paper which will be published later this year in the European Procurement and Public Private Partnership Law Review (EPPPL). The paper is focused on the relationship between the EU procurement thresholds and the GPA, arguing that the current threshold levels are arbitrary and effectively set by the EU's GPA commitments. Here's the abstract:

The regulation of procurement within the European Union is binary: above certain financial thresholds, contracts are subject to full EU regulation, whereas below they are only subject to national rules (in general). First introduced in the 1970s, the financial thresholds are arbitrary without a clear justification for their specific values. Thresholds remained fairly stable in nominal terms and over the years became solely dependent on the commitments assumed in the various revisions of multilateral procurement agreements, currently the Government Procurement Agreement (GPA) 2014. In consequence, the external market access commitments accepted by the EU in the GPA determine today the size of public procurement internal market.

While it is true that inflation and currency fluctuations have progressively reduced the real term value of thresholds, no proactive reductions have been undertaken by EU lawmakers, contrary to what was done with trade tariffs. In consequence, current threshold levels do not reflect any productivity improvements or transaction cost reductions achieved during the last 40 years. By remaining stable in nominal and changing only due to external pressures and inflation inertia, the thresholds have effectively functioned as a ceiling and a floor to the concept of internal market in public procurement within the EU.

This is the second paper of my "thresholds trilogy", with the first one focusing on cross-border interest for contracts below-thresholds (also available on SSRN). I am currently drafting the third one which will argue that we should make do with thresholds altogether or else we will never complete the internal market.

Reflections on Season 1 of the Public Procurement Podcast

Season 1 of the Public Procurement Podcast wrapped up earlier this month, so now is the time to reflect on the experience. In one year I since getting the go ahead, the website went up and so did 20 interesting interviews with (mostly) early career researchers in public procurement. Here are my learning points:

1. Interview preparation is key

I have plenty of experience running interview podcasts, but sometimes it is important to look back to the basics to get them right. Of the 20 PPP interviews I know which ones are my favourites and they all have something in common: those are the ones I put in an extra effort to know the interviewer well in advance, especially what he/she wrote about. This is not news for me: I remember feeling the same 5 years ago with ShowcasePT and before that with my Ph.D. Bottom line: good prep leads to good interviews.

2. The more focused the better

Interview prep also helps in making the interview tighter and more focused, something particularly important when the chat is lasting only 20 or 30 minutes. The more focused the discussion, the better the outcome.

For each interview I discussed with the interviewee in advance the general questions/topics we would explore in the talk. Sometimes that worked really well, sometimes we just veered into the woods. But that is important as I do not like to set interviews in rails and prefer a degree of free flowing which occurs naturally in a conversation.

3. Evergreen content leads to good audience numbers

I am huge fan of "evergreen" content, ie interviews where the content is not time sensitive like news interviews. The PPP follows this strategy on purpose, with only a limited number of interviews being a little bit more time sensitive. For the most part, the interviews will still be relevant in 2-3 years down the line and that is a good thing. Anyone coming across the podcast or the website in the meanwhile will benefit from content which is as relevant as when it was published.

To add value to the content I decided from the start to have transcripts, something different from my previous podcast forays. I picked up this idea from someone who does interview podcasts much better than myself and is using transcripts for ages: Andrew Warner from Mixergy. He explained to me once that lightly edited transcripts add value as with the same content you are providing something extra and enlarging the audience by reaching people who would not listen to the podcast in the first place. I think he's right and the transcript text surely helps Google index my content and raise the search profile of the PPP website.

So what about those numbers? Well, we're now up to 670 regular listeners (monthly hits on the podcast RSS feed) and the usual weekly number is around 250-300. Individual visits to the website are also quite good: 400/month in the last 3 months and an average of 208 since launch. Frankly, numbers are much higher than originally anticipated. Not bad for a niche product.

4. Always use the right equipment and on the right conditions

It really helps to use the right equipment to record a podcast. All interviews were done via Skype. My usual set up is a Rode Podcaster, connected to my trusty 2009 Mac Pro with the recording done via Audio Hijack. I do not do anything fancy to my room other than having a sound absorber of sorts and closing the window blinds to minimise reverb. The audio is always recorded in separate tracks so that the audio editor can mix/edit as appropriate. 

I was out and about for two interviews and had to record with a travel mic on my Linux laptop. It worked ok, but the sound quality on my end was not as good as in all other interviews. Plus, speaking to pillows sitting on a shelf to absorb ambient noise is not really fun.

5. Getting the right team on board really helps

I was very lucky with everyone involved in the podcast's production. Amy did an awesome logo and Cody did a great job in setting up the website on Squarespace. On the day to day running of the podcast Richard Pennington (audio editor) and Adele Herson (transcriber) were always on the ball making sure their bit was done on time and professionally. As for the last two I have to confess hating editing my own podcasts in the past and transcribing my PhD interviews. Having them on board released my time to more profitable activities and mental bandwidth for what I really like to do: talk with people about interesting topics.

What's next?

I would like to run a second season of the podcast, probably with a broader set of interviewees than season 1. There are a lot of people involved in procurement which are not early career researchers which would be great to interview: more senior academics, practitioners, policy makers, service providers and procurement professionals. There is a lot to talk about in procurement.

Now if only I could find someone to replace the kind support of the British Academy Rising Star Engagement Award for Season 2...