Contradiction between Article 281 of Criminal Procedure Code and the EU law

Summary:

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 governs procurement by sector contracting entities operating in the water, energy, transport and postal services sectors. Article 21(b) and (c) of the Directive excludes certain legal services from its scope – arbitration and conciliation services, legal representation by a lawyer, notarial acts, and legal advice connected with prospective proceedings. Recital 32 of the Directive explains why: these services are typically provided by persons selected in a manner that cannot be governed by procurement rules (for example, the choice of an arbitrator or the appointment of a State Attorney).

Key Facts at a Glance

• Act: Directive 2014/25/EU of the European Parliament and of the Council
• Date adopted: 26 February 2014
• Subject matter: Procurement by entities operating in the water, energy, transport and postal services sectors
• Repealed act: Directive 2004/17/EC
• Applicable exclusion provision: Article 21(b) and (c)
• Reasoning: Recital 32 of the Directive
• What falls outside the scope: Arbitration and conciliation services; specific legal services exhaustively listed in Article 21
• National context: The legal definition of "public procurement" under the Bulgarian Public Procurement Act

Background: The Legal Framework for Public Procurement

Public procurement plays a key role as a market-based instrument for achieving smart and sustainable growth of the EU economy, while at the same time ensuring the most efficient use of public funds in each Member State. The statutory regulation of procurement procedures at European level is aimed at establishing a framework for sound commercial practice.

According to the definition in the Bulgarian Public Procurement Act, "public procurement" is every acquisition, by means of a public procurement contract for works, supplies or services, by one or more contracting entities from contractors, suppliers or service providers chosen by those 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, for the pursuit of sector activities.

The legal framework for public procurement contains the principles of equal treatment, non-discrimination, free competition, proportionality and transparency, with procurement procedures also coordinated with the principles of the Treaty on the Functioning of the European Union (TFEU) — in particular the free movement of goods, the freedom of establishment and the freedom to provide services.

Which Legal Services Fall Outside the Scope of Directive 2014/25/EU

Directive 2014/25/EU provides for specific exclusions regarding service contracts. Under Article 21(b) and (c) of the Directive, arbitration and conciliation services fall outside its scope, as do:

1. Legal representation 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 in judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country, or before international courts, tribunals or institutions.

2. Legal advice given in preparation of any such proceedings, or where there is a tangible indication and high probability that the matter will become the subject of such proceedings, provided the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC.

3. Document certification and authentication services which must be provided by notaries.

4. Legal services provided by trustees or appointed guardians, or other legal services whose providers 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.

5. Other legal services which, in the Member State concerned, are connected — even occasionally — with the exercise of official authority.

Why These Services Are Excluded: The Reasoning in Recital 32

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

The same reasoning applies to legal services rendered by providers designated by a court or tribunal of a Member State, involving representation of clients in judicial proceedings by lawyers, notarial acts, or activities connected with the exercise of official authority. Such legal services are usually provided by bodies or individuals designated or selected in a manner that cannot be governed by procurement rules — for instance, the designation of State Attorneys in certain Member States. On that basis, the European institutions concluded that those legal services should also be excluded from the scope of Directive 2014/25/EU.

What This Means in Practice

• Sector contracting entities are not required to run a public procurement procedure to select an arbitrator, conciliator, lawyer for judicial representation, or notary.
• The exclusion is exhaustively listed in Article 21 — outside these specific scenarios, the general rules on service contracts remain applicable.
• Contracting entities must still assess each individual case, having regard to the principles of proportionality and subsidiarity, before using outsourced legal services without a procedure.
• The exclusion is based on the nature of the selection process (e.g., choosing an arbitrator by mutual agreement), not on the mere fact that the service is legal in nature.

Frequently Asked Questions

What does Directive 2014/25/EU regulate?

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 governs procurement by entities operating in the water, energy, transport and postal services sectors, and repeals Directive 2004/17/EC.

Which legal services are excluded from the scope of the Directive?

Arbitration and conciliation services, legal representation by a lawyer, legal advice connected with such proceedings, notarial certification and authentication, services provided by trustees or guardians, and other legal services connected with the exercise of official authority — under Article 21(b) and (c).

Why are these services not subject to a public procurement procedure?

Because they are typically provided by persons selected in a manner that cannot be governed by procurement rules — for example, choosing an arbitrator by mutual agreement, or appointing a State Attorney in certain Member States.

Does the exclusion mean sector contracting entities can freely engage any legal services without a procedure?

No. The exclusion is exhaustive and applies only to the specific scenarios listed in Article 21. Contracting entities should assess each case in light of the principles of proportionality and subsidiarity.

Does Directive 2014/24/EU contain similar exclusions?

This article addresses the specific regime under Directive 2014/25/EU for sector contracting entities; comparable exclusions for legal services also exist within the general public procurement framework.