Procurement disputes between the UK and the EU are just starting

I have spent the last 8 years or so arguing that 'community benefits' are nothing but a covert operation for what is protectionism of a more local nature and a gateway drug for ever more protectionism in a grander scale. What some contracting authorities (and countries as well, even inside the EU) have been looking for is to establish discriminatory provisions that have a veneer of legality about them.

Plus, back in 2017 Albert Sanchez-Graells and myself argued quite extensively that the UK's departure from the EU did not provide an opportunity for a wholesale opportunity to tilt procurement in favour of national suppliers if the UK wanted to join the GPA (as it did).

Well, fast forward to 2021 and the European Commission is already raising concerns about the UK's approach to procurement practice even before the upcoming legal reform. In particular, the upcoming offshore windfarm contracts are raising a couple of questions. First, the UK government wants 60% of goods and services to be provided by UK supply chains. Second, the qualification questionnaire which requires evidence of UK content being involved in the project as well as for the support the creation of jobs in the UK. The latter is a textbook example of 'community benefits' and as I've warned about in the past, can be defined as offsets by any other name.

What the UK is intending to do violates the EU-UK Trade and Cooperation Agreement namely arts 129 and 132(1)(b). The former affords national treatment to suppliers of both EU and UK and the latter forbids the parties to require an undertaking to achieve a given level or percentage of domestic content. As for the second count, it depends if the contracts are caught by public procurement rules or not, as I'm not entirely sure it does since the Guardian describes it as a 'contract for difference', offering a top-up on the price from the energy to be supplied from those offshore windfarms.

If the contracts are covered by procurement rules, then the UK approach tries to drive a cart through its commitments under the GPA and also the TCA since it incorporates said commitments from the into the TCA agreement itself (art 277 TCA). It is *possible* as well that art 281 of the TCA is also breached by this provision if the tender is designed to require experience in the UK, something that has not been alleged but it is worth mentioning here.

There is a fundamental difference however between 'being illegal' and 'doing something about it'. With the UK outside of the Union, economic operators can relay on the UK court system(s) but the Commission and CJEU levers are out of the equation, thus reducing compliance with procurement rules. In any case, the case at hand shows the slippery slope into protectionism and  they just show how the UK is planning to deal with its international commitments.

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