ECB欧洲央行-Legal-working-paper-no-18_-The-European-Central-Bank-and-EU-procurement-law_-a-comparative-outlook_43页_613kb

Summary of the Working Paper: The European Central Bank and EU procurement law: a comparative outlook

Core Content

This working paper provides an overview of the legal frameworks governing public procurement at the European Central Bank (ECB) and compares them with those of other EU institutions, particularly the European Investment Bank (EIB) and the EU Financial Regulation. It highlights the unique legal status of the ECB and its evolution from non-binding internal guidelines to a transparent and comprehensive legal framework.

Main Views

1. Importance of Procurement Law in the EU

• Public procurement is a growing area, accounting for over 14% of the EU's GDP.
• Procurement law has evolved from general rules to enforceable individual rights.
• The scope of procurement law has expanded to include new areas, such as defense and urban development.

2. ECB Procurement Legislation

• The ECB has developed its own procurement rules, not subject to the EU procurement directives or the Financial Regulation.
• These rules are based on the ECB Rules of Procedure, particularly Article 19, which outlines principles such as transparency, proportionality, equal treatment, and fair competition.
• The ECB's procurement rules were formalized in Decision ECB/2016/2, which replaced earlier internal guidelines and reflects a more structured and transparent approach.

3. Procurement Rules of Other EU Institutions

• Most EU institutions follow the Financial Regulation, which governs procurement from the general EU budget.
• The EIB is also not subject to the Financial Regulation and has its own procurement guide, the EIB Corporate & Technical Assistance Procurement Guide.
• The EIB's procurement guide is not legally binding but aligns with EU procurement directives and includes adaptations for its specific role as a financial institution.

Key Issues in Comparative Analysis

1. Selection and Award Criteria

• The ECB Decision outlines clear selection and award criteria, including the principles of equal treatment and non-discrimination.
• The EIB Procurement Guide also follows these principles but may apply different procedures for contracts related to its financial operations.
• Both institutions prioritize the best value for money, though the ECB explicitly lists proportionality as a binding principle.

2. Transparency and Publication

• The ECB publishes contract notices in the Official Journal of the EU (OJEU) and on its website, following the structure of Directive 2014/24/EU.
• It allows for flexibility in the form of periodic prior information notices and calls for expression of interest.
• The EIB also publishes notices but does not have the same level of legal bindingness as the ECB.

3. Proportionality

• The ECB Decision explicitly recognizes proportionality as a binding principle, aligning with CJEU case law and EU procurement directives.
• The EIB also adheres to the principle of proportionality, though its procurement guide does not list it as a binding principle in the same way.

4. Legal Remedies

• The ECB provides a 15-day period for candidates to appeal the outcome of a procurement procedure.
• Appeals are reviewed by the Procurement Review Body (PRB), and unsuccessful appeals can be taken to the CJEU or to the European Ombudsman.
• The EIB does not provide for legal remedies for third parties, only internal guidelines for staff.

Conclusion

• The ECB has developed a comprehensive and transparent procurement framework, distinct from the Financial Regulation and EU procurement directives.
• While the EIB also has its own procurement regime, it is less formal and does not provide for legal remedies for external parties.
• Both institutions are influenced by the EU procurement directives and CJEU case law, but their legal status and autonomy allow them to tailor their procurement rules to their specific needs.
• The paper concludes with a comparative summary, emphasizing that while EU institutions have their own procurement frameworks, they must be interpreted in light of the general principles of EU law.

Key Information

• ECB's procurement law is based on Article 19 of its Rules of Procedure and was formalized in Decision ECB/2016/2.
• EIB's procurement is governed by its Corporate & Technical Assistance Procurement Guide, which is not legally binding but aligns with EU directives.
• Financial Regulation applies to most EU institutions, but not to the ECB and EIB due to their separate budgets and autonomy.
• Procurement procedures vary between institutions, with the ECB emphasizing transparency, proportionality, and equal treatment.
• Legal remedies are available to candidates in ECB procedures but not in EIB procedures.
• The EU procurement directives and CJEU case law serve as a reference point for both institutions, even though they are not directly applicable.

References

• The ECB's procurement rules are rooted in its Rules of Procedure, particularly Article 19.
• The EIB's procurement guide is updated periodically and includes adaptations to EU directives.
• The Financial Regulation (EU, Euratom) No 2018/1046 and its predecessors (1973, 1977, 2002) form the basis for most EU institutions' procurement rules.
• The CJEU has issued over 100 judgments on procurement procedures by EU institutions, shaping the legal landscape.

Keywords

• European Central Bank
• Public Procurement
• European Investment Bank
• Financial Regulation
• EU Procurement Directives
• Selection and Award Criteria
• Proportionality Principle
• Transparency Principle
• Legal Remedies