The 2016 European Union International Procurement Instrument’s Amendments to the 2012 Buy European Proposal: A Retrospective Assessment of Its Prospects

Abstract

This article assesses the European Commission’s 2016 Amended Proposal for ‘a Regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries’.1 The proposed regulation aims to improve the conditions under which European Union (EU) businesses can compete for public contracts abroad. It provides the EU with leverage through imposing a price penalty on any tender for an EU procurement which is originating in a country that does not offer the EU ‘reciprocity’ in access to its procurement markets. After introducing the 2016 International Procurement Instrument (IPI) Amended Proposal, the article examines the legal framework of the Amended Proposal with reference to its evolution from the European Commission’s original 2012 proposed regulation. The analysis then turns to the concept of reciprocity, which serves as the justificatory basis of the Commission’s proposal before assessing the 2016 Amended Proposal’s compatibility with the EU’s commitments under the World Trade Organization (WTO), including most notably the World Trade Organization’s Government Procurement Agreement (WTO GPA), the General Agreement on Tariffs and Trade (GATT) and the Agreement on Subsidies and Countervailing Measures (ASCM). This assessment concludes by questioning the compatibility of this proposed regulation with the EU’s obligations under the WTO as well as the objectives of the EU procurement rules, underpinned by Treaty principles.