Willem A. Janssen
Innovative and sustainable solutions to fight climate change and social injustice are imperative. The recent IPCC report contains a truth we already knew existed, yet have too often still ignored: ‘It is unequivocal that human influence has warmed the atmosphere, ocean and land. Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred.’ The report is also clear on the need for change, which will greatly affect our economy and (social) environment. Despite the apparent main-streaming of climate-related objectives in the Paris Agreement, the EU Green Deal and on the national level, it is an understatement to say that the societal debate on the subsequent course of action has not been settled.
EU law scholars have a role to play in this debate. They should actively aim to provide an understanding of the influence of this field of law. Does the law limit or enable the ultimately chosen path to mitigate climate-change related issues? More importantly, their continuous task should be to question the law, and ask: what is necessary from a legal perspective to improve its effectiveness? Ultimately, this boils down to the question if EU law is future-proof, and well-suited to help guide us in the right direction. In other words, legal scholars have an important role to play in understanding, questioning and even crafting EU legal frameworks that aid us to overcome pressing societal challenges.
In his compact and to-the-point book, Pedro Cerqueira Gomes proves he is indeed a scholar that lives up to these standards. His work adds significantly to our understanding of how EU public procurement law influences the discretionary power of public authorities that aim to procure innovative goods, services and works on the market. This is relevant, because public procurement, which represents a staggering economic value of approximately 14-19% of the EU GDP, can be an important driver to create the required societal change. These authorities have the opportunity to take on a trendsetting role, which is a position that is strongly advocated by the EU Commission as well. In fact, the 2014 reforms of the Directives on public procurement (2014/24/EU, 2014/23/EU and 2014/25/EU) even led to the inclusion of various legal possibilities to procure sustainable and innovative solutions on the market. One of the most promising reforms back then was the introduction of a new public procurement procedure, the innovation partnership in Article 31 Directive 2014/24/EU, which takes center stage in Cerqueira Gomes’ book.
The book, which served initially as his PhD thesis, is the first to coherently explore the stages and main features of the innovation partnership procedure in an in-depth manner (fn 1). Chapter 4 and 5 add value to the existing literature by identifying potential problems related to the use of this procedure, including the grounds of use, selection of the economic operator, and the applicability of the regime related to contractual modifications in Article 72 Directive 2014/24/EU. Without explicitly making the link with climate change, this part of his work will also prove useful for discussions on the legal framework under which innovative solutions in the circular economy and energy transitions can be purchased by public authorities struggling to fulfill general sustainability objectives. On a more fundamental level, the author also adds to discussions on how the chosen type of harmonization through Article 114 TFEU affects the ability of public authorities to achieve innovation through public procurement. For instance, he questions the differences between the Member States that the type of harmonization can cause due to their different national administrative law traditions, and proposes stronger oversight mechanisms. Chapter 2 and 3, thus, provide a basis to continue the discussions on the suitability of EU public procurement law in general, but a broad ‘fit for purpose’ discussion will also require a more in-depth interdisciplinary approach including perspectives from law, economics and public purchasing studies, enriched by experiences from practice, to be able to fully improve the law on this front.
Finally, the book proves to be an accessible read. Interestingly, Cerqueira Gomes ends each chapter with a – somewhat unconventional – numbered section with ‘partial conclusions’. He must be praised for opening his step-by-step legal reasoning up to critical reflections in this way. Academia could use more of this writing style. Accordingly, his book will appeal to academics, practitioners and public purchasers. All in all, a recommended read for those who are involved with public procurement (law), innovation and the question of how EU law influences our ability to overcome societal challenges.
Dr. Willem A. Janssen is an Associate Professor in European and Dutch Public Procurement law at the Centre for Public Procurement (UUCEPP) & Centre for Regulation and Enforcement in Europe (RENFORCE), School of Law, Utrecht University.
(fn 1) Also see: P. Telles and L. Butler, ‘Public Procurement Award Procedures in Directive 2014/24/EU’ in F. Lichère, R. Caranta and S. Treumer (eds), Modernising Public Procurement: The New Directive (Djøf Publishing, 2014); M. Andrecka, ‘Innovation Partnership in the New Public Procurement Regime – A Shift of Focus from Procedural to Contractual Issues?; (2015) 2 Public Procurement Law Review, pp, 28-62.