The EU's public procurement inception error

Thresholds. I have written a couple of times (here and here) about how the EU financial thresholds make no sense in this day and age.  Long story short, they were created in the 70s and 80s and have largely remained unchanged once EEC/European Union joined the GPA. There is no specific reason why they their value is what it is. They just are. They just exist.

Actually, that is not true. There is an obvious reason why they exist and why the values are so high: protectionism (and politics). This is why the original works threshold 1,000,000 units of account (then ECU, then euro) threshold was transformed into 5,000,000 just before works were added to the EEC's commitments to the GPA in 1980s.

Public procurement in the EU suffers from this incepion error to this date and in consequence we end up paying the price of a dual system that simply makes no sense. Above thresholds, we 'assume' (but never question) they are of interest for the internal market and apply the EU Directives with all the trimings. Below them, we use instead Schrodinger's 'certain cross-border' interest cat that was concocted by multiple decisions from the CJEU from Telaustria to Commune di Ancona. Depending on who turns up to a procedure (or should have) then the procedure is either subject to EU principles or not. Does it make sense to define the rules applicable to the procedure ex post facto? I think not, but then Mercury is sometimes in retrograde as well.

Over the years I have described this madness with an analogy with free movement of workers. Let's assume that when free movement is included in the Treaty, it is presumed only jobs with a €40,000/year salary are relevant for the internal market and subject to EU rules. For those lower salaries, only those with 'certain cross-border interest' would trigger the application of EU principles (and no pesky secondary legislation). What would have happened to freedom of movement? How would it have developed? Would the EU27 be united behind it in the Brexit negotiations for example?

Juncker's state of the union speech yesterday provided me with another, more modern, analogy. The Commission is considering (correctly) that non-personal data should flow freely between Member States and should not be used as a trade barrier between them. Now, if financial thresholds are such a great idea and if it is indeed necessary to make a judgment call today of what will be or not be of relevance for the internal market in a burgeoining area should we not use them? So, why are we not deploying them in the digital sectors?

Because they make no sense. Just as they do not in procurement. But at least this time around there is no inception error in the definition of internal market to regret later on.