Abstract
This paper uses EU trade policy to explore some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law. The paper’s starting position is that, with this policy and regulatory approach, the EU pursues two main goals: first, to further global standards of human rights protection and, second, to further regulatory convergence toward its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension of EU procurement law for the case law of the Court of Justice on good administration and access to justice, as recognised in the Charter of Fundamental Rights of the European Union. The paper concentrates on public procurement because of its relevance in free trade agreements between the EU and third countries, as well as the relevance of legislative and case law requirements concerning procurement remedies. The paper assesses both the outward and inward implications of the territorial extension for the Court of Justice’s case law. The discussion in the paper also raises general issues concerning procedural design and the consideration of foreign law by the Court of Justice in different settings.
Highlights
EU law has increasingly created effects beyond the European Union.1 This has fuelled academic debate around the extent and legitimacy of such regulatory expansion,2 as well as criticism of the global reach of EU law,3 from the perspective of its compatibility with international law and the rejection of extraterritoriality
This paper explores some of the legal implications of the territorial extension of EU public procurement law through deep and comprehensive FTAs (DCFTAs), free trade agreements (FTAs) and the planned unilateral trade-retaliatory instrument (UTI)
It seems that the scope for the territorially extended application of the Court of Justice’s case law in the area of public procurement is rather wide and that its extent will depend, in good measure, on (i) the position taken by the European Commission when it interprets that case law and translates it into actionable policy, and (ii) on the effectiveness of the dispute resolution mechanisms of the DCFTAs and FTAs signed by the EU, and of any direct challenges of enforcement acts derived from the planned UTI, which would still trigger a significant number of issues, the analysis of which, exceeds the scope of this paper
Summary
EU law has increasingly created effects beyond the European Union. This has fuelled academic debate around the extent and legitimacy of such regulatory expansion, as well as criticism of the global reach of EU law, from the perspective of its compatibility with international law and the rejection of extraterritoriality. Given the expansive approach taken in the case law of the Court of Justice toward procedural guarantees, the territorial extension of such case law can have a significant impact on the municipal administrative and judicial systems of the non-EU countries that are counterparties to trade agreements covering procurement – which could trigger extraterritoriality concerns, to the extent that developments in the Court of Justice’s case law are not covered by the overarching treaty structures This can be relevant for countries with DCFTAs, where the procedural obligations are more demanding ( the risks of extraterritoriality are lower, due to the existence of the DCFTAs themselves), and for countries facing potential trade disputes on the basis of the planned UTI (which could result in outright extraterritoriality), and for countries engaging in voluntary regulatory approximation, be it under an FTA or under the scope of the WTO GPA (which creates an intermediate scenario concerning risks of illegitimate territorial extension). It discusses how the EU plans to extend its policy through a UTI (Section 2.3)
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