Article 77 - European preference in sectoral Union Legislation
The final article in this chapter attempts to solve the mess created by the profusion over time of sectoral Union legislation hijacking interfacing with public procurement to use it for the achievement of various goals. Over time the left hand does not know what the right hand does and we have had an increase in complexity and legal provisions that do not seem to be well integrated with one another.
Marko's entry for this article is available here.
The article reads that:
Where Union legislation contains provisions, restricting or setting conditions for participation in public procurement procedures or giving preference depending on the origin of economic operators, goods, services or works, the rules set out in this Chapter shall apply, unless regulated otherwise in the Union legislation in question.
This amounts to the creating of a default regime for European preference that 'fills in the gaps' of all those sectoral pieces of legislation that want to influence public procurement in the context of the common commercial policy. In an attempt to provide a degree of consistency and legal certainty, the Commission is creating a degree of complexity where it did not exist before. Now, if an existing European preference provision already exists in a sectoral legislation (for instance, let's imagine the final Industrial Accelerator Act version is identical to the original proposal) that lex specialis remains in force. However, in the bits on European preference that may not be regulated there, then the rules from Title II Chapter V are applicable nonetheless. Here's a specific example of how this might be complex in practice. Article 16 of the Industrial Accelerator Proposal provides for the adoption of delegated powers by the Commission to amend Annex II and III on Union origin requirements for certain products. What if the Commission does not adopt a delegated legislation under the IAA covering a product included on Annex II but instead approves a broader one covering the same category of products (and others) under Article 75 PPA? What obligation must the public buyers comply with? The original under the IAA or the mandatory requirement from Article 75 PPA?
Now let's consider the opposite scenario. The Commissions approves a delegated act under Article 16 IAA, can a public buyer avail itself of the exceptions of compliance from Article 76 of the PPA? Once again, food for thought.
PS: The votes are in and the people have spoken. When we return to the commentary we will be looking into articles 50-69, the other strategic procurement chapters in the Public Procurement Act proposal.