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The effect of Brexit on EU public tenders

June 6, 2017

An article gives a legal overview of the possible effect of Brexit on EU public tenders.

Lexology reported that “Macron wants British firms frozen out of EU contracts (£)” and this will have shocked many CEOs. This move could cause a Tit for Tat retaliation and “impact public service companies and the delivery of public services across Europe”.

EU legislation dominates public tendering in the EU and is aimed at “ensuring an open marketplace for public services, with no discrimination and a level playing field” with the market itself worth €250 billion ($281 billion) for the EU 27 and €100 billion ($112 billion) for the UK.

The article noted that the outlook for the UK and EU27 is “less bleak” and will be an important part of negotiations for Brexit but the UK government’s approach is not yet known and there may be no deal at all but there is no indication that it wishes to “close this marketplace or stop UK businesses accessing EU27” ones. The Great Repeal Bill white paper indicates that “there will be no immediate change to any EU-derived law, including therefore public procurement law”.

The article suggested that UK options are probably “bespoke agreement[s] allowing for mutual continuing access to public sector market places” or the UK could “look to the General Agreement on Procurement under the WTO” but that would depend on whether the UK has to reapply for membership or if it will automatically be renewed.

The articles stated: “Under the GPA the UK would have continued access to EU27 markets and vice versa, and would have scope over time (if it wanted to) to move away from EU-mandated rules to a system which reflected its own preferences. Neither a ‘buy British’ nor a ‘buy EU’ policy would be allowed” and said that in a no deal situation the UK could “join the GPA and have continuing access to the EU27 public sector marketplace” but with less favourable terms…

Summarising the article noted that lessons could be learned and that the lawyers job is to “present and explain legal position” while more details are needed from UK government policy and that this will be complicated to “agree with the EU” and that repatriation of EU-derived law will be needed for changes arising from the Brexit process and the risk of “legislative bottleneck is huge” and “CEOs, procurement professionals and lawyers should keep their eyes peeled and make their voices heard”.

 

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