Some specificities within the scope of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors

directive 2014/25/EU
Aug. 08, 2022
Public procurement plays a key role as one of the market-based instruments to be used to achieve smart and sustainable growth of the EU economy while ensuring the most efficient use of public funds in each Member States as the statutory regulation of the procurement procedures subject matter at European level has as its object the establishing of a framework for sound commercial practice.

According to the definition in Bulgarian Public Procurement Act public procurement is every acquisition by means of a public procurement contract of works, supplies or services by one or more contracting entities from contractors, suppliers or service providers chosen by the said contracting entities, where the works, supplies or services are intended for a public purpose or for the needs of public contracting entities and, in the case of sector contracting entities, intended for the pursuit of sector activities.

The legal basis of the procurement procedures contains the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency while there is also a coordination b between the procurement procedures and the principles of the Treaty on the Functioning of the European Union (TFEU) and in particular the free movement of goods, the freedom of establishment and the freedom to provide services.

It shall be noted that there are specific exclusions for service contracts laid down in Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC. It is apparent from Article 21 (b) and (c) of Directive 2014/25/EU the arbitration and conciliation service as well as the:
  1. legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC in:
  • an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance; or
  • judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;
  1. legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC;
  2. document certification and authentication services which must be provided by notaries;
  3. legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;
  4. other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority
fall outside its scope.

In paragraph 32 of Directive 2014/25/EU of 26 February 2014 the European Parliament and the Council of EU specify that arbitration and conciliation services and other similar forms of alternative dispute resolution are usually provided by bodies or individuals which are agreed on, or selected, in a manner which cannot be governed by procurement rules. In this respect they clarify that the Directive at issue does not apply to service contracts for the provision of such services, whatever their denomination under national law.

Specification appears also in respect of the legal services which are rendered by service providers that are designated by a court or tribunal of a Member State, involve representation of clients in judicial proceedings by lawyers, must be provided by notaries or are connected with the exercise of official authority. It is stated in this connection that such legal services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules, such as for instance the designation of State Attorneys in certain Member States. Having regard to the foregoing, the European institutions have concluded that those legal services should therefore be excluded from the scope of Directive 2014/25/EU.
Therefore should be noted that the contracting entities should exercise their discretion on which cases shall be used outsourced legal services considering the foregoing and the principle of proportionality and subsidiarity.